IME no show – reasonableness not enterained

Stracar Med. Servs., P.C. v Allstate Prop. & Cas. Ins. Co., 2016 NY Slip Op 51431(U)(App. Term 2d Dept. 2016)

The court found that there was a question as to the reasonableness of the IME requests because there was evidence that plaintiff’s assignor had appeared for other IMEs. However, the no-fault regulations provide that an eligible injured person “shall submit” to IMEs “when, and as often as, the Company may reasonably require” (11 NYCRR 65-1.1; see also Power Supply, Inc. v Praetorian Ins. Co., 46 Misc 3d 146[A], 2015 NY Slip Op 50218[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2015] [“an assignor’s appearance for any duly scheduled IME or EUO is a condition precedent to the insurer’s liability on the policy”]). Contrary to the finding of the Civil Court, the record does not raise any question as to the reasonableness of the IME requests at issue, which were for an orthopedic examination. While, in its cross motion and opposition to defendant’s motion, plaintiff attached reports from other IMEs of the assignor, most of those IMEs were in different specialties, such as acupuncture. The only other orthopedic IME report attached, which is dated about four weeks before the first scheduled IME at issue in this case, specifically states that treatment should continue for four weeks, at which time the claimant “should be re-evaluated.”

In any event, plaintiff’s objections regarding the IME requests should not have been [*2]considered by the Civil Court, as plaintiff did not allege, much less prove, that its assignor had responded in any way to the IME requests.

This is rough because the EIP showed up to quite a few but then missed the specified two in the same specialty.  The only rub here is that to the extent that law can extrapolate a retroactive cancellation of the policy, that would be limited the time period of 30-days prior to the first IME and moving forwad.  65-3.5(d)