Key Takeaway
Sutphin v Hereford: mailing was established, but IME nonappearance remained disputed. The complaint was reinstated and neither side received summary judgment.
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.
Last reviewed: September 2026.
Historical note: Sutphin left IME nonappearance triable on its 2016 record; GC Chiropractic (2025) and the 2026 note on that EUO appeal address a different examination and do not erase Sutphin’s evidentiary issue.
Mailing was proved; nonappearance was not resolved
Sutphin Complete Medical Care v Hereford, 2016 NY Slip Op 50763(U), separates two questions that can get lost in an IME no-show motion. The insurer established proper mailing to the assignor and his attorney. The record still raised a triable issue about attendance.
The Appellate Term, First Department, modified the order to deny the insurer’s motion and reinstate the complaint. The same factual dispute prevented summary judgment for the provider. The short opinion does not describe the individual affiant or set out the insurer’s underlying attendance records.
Free Consultation · No Fee Unless We Win
Does this apply to your situation?
Every case is different. Get a free, confidential case review from an experienced attorney who can tell you exactly where you stand.
Jason’s May 2016 commentary
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.
Reading the affidavit cases together
Sutphin cites Village Medical, which faulted the doctors’ failure to explain their recollection and the vendor’s reliance on third-party statements. That is a foundation problem, not a rule that every office record is unusable or every witness must have observed the doorway.
For contrast, MDJ Medical accepted physician affidavits describing personal knowledge and reporting practices. The later GC Chiropractic opinion accepted an attorney’s EUO affirmation on renewal despite an approximately three-year interval. Neither opinion establishes a six-month expiration date for affidavits; they address different examinations and different proof.
Connect to the Encyclopedia
Start with the IME no-show encyclopedia hub for the case directory and the distinction between notice, attendance and denial evidence.
- A separate question: proof of an excuse
- All Borough: successful evidence from the examiner’s office
- Earlier commentary on the no-show proof
- MDJ Medical: sufficient physician evidence
- Village Medical: basis of recollection missing
- The 2026 GC Chiropractic discussion: EUO, not IME
For review of a particular no-fault dispute, contact the Law Office of Jason Tenenbaum.
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.
Keep Reading
More IME issues Analysis
Simple addition is insufficient
Jodi Jacobs's 2021 mixed appeal: four claims dismissed, one fee balance unresolved, and why the schedule alone did not prove correct code use.
May 22, 2021
NF-3 is the operative document
Unitrin Direct v Beckles: the NF-3, timely IME requests and two missed examinations. Distinguish the request deadline from the examination date.
Mar 22, 2021
The IME doctor is in numerous places
MB Advanced Equipment: conflicting IME-location affidavits raised a factual issue. The court did not find fraud, perjury or insurance bad faith.
Jun 10, 2016
Quality or Amex?
Court wrestles with Quality vs Amex theories for proving IME no-shows, highlighting ongoing legal tensions in New York no-fault insurance cases.
Dec 23, 2014
IME no-show – complaint dismissed
Court dismissed no-fault claim when patient failed to appear for IME after insurer proved proper notice was mailed and plaintiff couldn't contest nonappearance.
Mar 21, 2013
The NF-2
Colin v Global Liberty: IME notices matched the NF-2 and NF-3. A different police-report ZIP code did not defeat the insurer's proof on this record.
Sep 25, 2020Was this article helpful?
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.
