Key Takeaway
New York court finds triable issues when insurance company claims IME no-show without proper foundation, highlighting burden of proof requirements in no-fault cases.
This article is part of our ongoing ime issues coverage, with 149 published articles analyzing ime issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
IME No-Show Defense Fails Due to Lack of Personal Knowledge
Independent Medical Examinations (IMEs) are a crucial component of New York No-Fault Insurance Law, allowing insurance companies to verify medical claims and treatment necessity. However, when insurers claim a patient failed to appear for a scheduled IME, they must establish proper foundation for their allegations through witnesses with direct, personal knowledge of the nonappearance. The recent Appellate Term decision in Sutphin Complete Medical Care v Hereford Insurance Co. demonstrates how courts are scrutinizing the quality and sufficiency of evidence insurers present when asserting IME no-shows as grounds for claim denial.
The evidentiary burden on insurance companies in IME no-show cases has evolved significantly over the past decade. Following early decisions like Stephen Fogel Psychological, P.C. v Progressive Casualty Insurance Co., courts began demanding more rigorous proof that claimants actually failed to appear for scheduled examinations. This heightened scrutiny extends beyond mere proof of mailing scheduling letters—it requires affirmative evidence from individuals who personally witnessed or documented the nonappearance on the scheduled date.
The personal knowledge requirement serves a critical gatekeeper function in no-fault litigation. It prevents insurance companies from relying on hearsay, generalized business records, or testimony from employees who compile information secondhand but have no direct knowledge of whether a specific individual appeared at a specific time and place. This requirement protects healthcare providers and patients from improper claim denials based on inadequate documentation.
Case Background
In Sutphin Complete Medical Care, the insurance company moved for summary judgment to dismiss the healthcare provider’s claims based on the assignor’s alleged failure to appear for scheduled Independent Medical Examinations. The insurer submitted an affidavit from a company representative attesting to the nonappearances, along with copies of scheduling letters and other documentation purporting to show that IMEs had been properly scheduled and that the patient failed to attend.
The healthcare provider challenged the sufficiency of the insurer’s proof, arguing that the affiant lacked personal knowledge of the alleged nonappearances. The Civil Court granted the insurance company’s motion for summary judgment, finding that the insurer had established its defense as a matter of law. The provider appealed to the Appellate Term, First Department, seeking reversal on the grounds that triable issues of fact existed regarding whether the assignor actually failed to appear.
Jason Tenenbaum’s Analysis:
Sutphin Complete Med. Care v Hereford Ins. Co., 2016 NY Slip Op 50763(U)(App. Term 1st Dept. 2016)
“the record raises triable issues as to whether the assignor failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 ; Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126, 2016 NY Slip Op 50339 ; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140, 2016 NY Slip Op 50174 ).”
The triable issue of facts mirror what we saw starting in the Westmed v. State Farm case: how can somebody aver to an act performed 12 months ago without establishing a foundation for the fact? This Court seems to be running with the line of cases unique to this court.
Legal Significance
This decision represents an important development in the First Department’s jurisprudence on IME no-show defenses. The court’s willingness to find triable issues of fact based on inadequate personal knowledge reflects a broader trend toward heightened evidentiary standards in no-fault insurance litigation. By citing to recent cases including Village Medical Supply and Metro 8 Medical Equipment, the Appellate Term signaled its commitment to a consistent doctrinal approach requiring firsthand knowledge rather than reconstructed or compiled testimony.
The decision also underscores the temporal dimension of personal knowledge requirements. As Jason Tenenbaum notes in his analysis, the passage of time between an alleged nonappearance and the affiant’s testimony raises legitimate questions about the reliability and foundation of such testimony. When insurance company employees attempt to testify about events that occurred many months earlier without explaining how they have personal knowledge of those specific events, courts recognize the inherent unreliability of such evidence.
This holding aligns with fundamental evidentiary principles that distinguish between what a witness personally observed and what they learned through other sources. In the context of IME scheduling, personal knowledge typically requires that the affiant was physically present at the examination location on the scheduled date, maintained contemporaneous attendance records, or has some other direct connection to the event beyond reviewing files or computer records created by others.
Practical Implications
For insurance companies, this decision necessitates careful attention to who provides affidavits in IME no-show cases. The affiant must be someone who can credibly attest to personal knowledge of the nonappearance—typically the examining physician, office staff present on the scheduled date, or someone who maintained real-time attendance records. Generic affidavits from claims adjusters or litigation specialists who compile information from files will likely be insufficient under this standard.
Healthcare providers challenging IME no-show defenses should carefully examine the foundation and personal knowledge of the insurer’s witnesses. Questions to consider include: Was the affiant physically present on the scheduled examination date? Did they personally observe whether the patient appeared? What contemporaneous records did they maintain? How do they have personal knowledge of events that occurred months earlier?
The decision also reinforces the importance of discovery in these cases. Providers should consider deposing the insurer’s affiants to explore the basis of their claimed personal knowledge and to uncover potential gaps in their testimony that could create triable issues of fact.
Key Takeaway
Insurance companies cannot simply claim IME no-shows without proper evidentiary foundation and personal knowledge from witnesses. Courts are increasingly demanding that insurers demonstrate how their witnesses have direct, firsthand knowledge of nonappearances, particularly when significant time has elapsed between the alleged event and the testimony. This trend provides stronger protection for healthcare providers challenging claim denials and ensures that substantiated no-show requirements go beyond mere assertions or reconstructed testimony from file reviews.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Sep 25, 2020Common Questions
Frequently Asked Questions
What is an Independent Medical Examination (IME)?
An IME is a medical examination conducted by a doctor chosen by the insurance company to evaluate the claimant's injuries and treatment. In no-fault cases, insurers use IMEs to determine whether ongoing treatment is medically necessary, whether the injuries are causally related to the accident, and whether the claimant has reached maximum medical improvement. The results of an IME can form the basis for a claim denial or cut-off of benefits.
Can I refuse to attend an IME?
No. Under New York's no-fault regulations, attending an IME when properly scheduled is a condition precedent to receiving benefits. However, the insurer must follow specific scheduling procedures — including providing reasonable notice and accommodating certain scheduling conflicts. If the insurer fails to properly schedule the IME or you have a legitimate reason for missing it, the resulting denial may be challenged.
How should I prepare for an Independent Medical Examination?
Be honest and thorough when describing your symptoms, limitations, and treatment history. Arrive on time with photo ID and be prepared for a physical examination that may test your range of motion and functional abilities. The IME doctor works for the insurance company and may spend limited time with you, so clearly communicate your ongoing symptoms. Your attorney can advise you on what to expect and review the IME report for accuracy afterward.
What is maximum medical improvement (MMI) in no-fault cases?
Maximum medical improvement (MMI) means the point at which your condition has stabilized and further treatment is unlikely to produce significant improvement. When an IME doctor determines you have reached MMI, the insurer may cut off further no-fault benefits. However, reaching MMI does not necessarily mean you have fully recovered — you may still have permanent limitations. Your treating physician can dispute the MMI finding through a detailed rebuttal affirmation.
Can I challenge an IME doctor's findings in my no-fault case?
Yes. If an IME results in a denial or cut-off of benefits, your treating physician can submit a sworn affirmation rebutting the IME findings point by point. The rebuttal should reference specific clinical findings, objective test results, and range-of-motion measurements that contradict the IME conclusions. At arbitration or trial, the fact-finder weighs both the IME report and the treating physician's opinion. An experienced no-fault attorney can identify weaknesses in the IME report.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a ime issues matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
