Key Takeaway
Second Department allows attorneys at IMEs in Henderson v Ross, disagreeing with First Department on transparency in New York no-fault insurance examinations.
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.
Henderson v Ross, 2017 NY Slip Op 01186 (2d Dept. 2016)
For some reason, American Transit (AT) has this inchoate fear of visitors at IMEs that their doctors perform. This fear has materialized into rampant litigation on the issue of whether a Plaintiff’s attorney or paralegal/support staff that is affiliated with a Plaintiff’s attorney is allowed to to attend an IME. I would say that in light of the Dr. Katz and Dr. Israel events of 3-4 years ago (and there is a myriad of interpretations of what really happened that I am not going to opine upon on this blog), one would think that more transparency is better than less.
How many times has a Claimant stated the “IME was 3 minutes”? Do I believe that Claimant? Without proof, who is to say. I know many really awesome IME practitioners who I have referred friends to treat with because their integrity and acumen is second to none. I also know a few IME practitioners that downright scare me and I cringe when I see them in Court (on a PIP or a BI case).
AT disagrees in transparency and the First Department in a prior post on here agreed with AT. The Second Department has now said otherwise, and I think the Second Department got it right.
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“A plaintiff “is entitled to be examined in the presence of her attorney or other legal representative, as well as an interpreter, if necessary, so long as they do not interfere with the conduct of the examination[ ]” (Ponce v Health Ins. Plan of Greater N.Y., 100 AD2d 963, 964; see Guerra v McBean, 127 AD3d 462, 462; A.W. v County of Oneida, 34 AD3d 1236, 1237-1238; see also Bermejo v New York City Health & Hosps. Corp., 135 AD3d 116, 143). Here, the defendant failed to meet his burden of establishing that the plaintiffs’ representative would improperly interfere with the conduct of the injured plaintiff’s physical examination (see Guerra v McBean, 127 AD3d at 462; Flores v Vescera, 105 AD3d 1340, 1340-1341; A.W. v County of Oneida, 34 AD3d at 1238; see also Lamendola v Slocum, 148 AD2d 781, 781-782; cf. Kattaria v Rosado, _____ AD3d _____, 2017 NY Slip Op 00091 ). Accordingly, the Supreme Court should have denied that branch of the defendant’s motion which was for a protective order precluding any non-attorney from accompanying the injured plaintiff in the examination room during his physical examination.”
Expect this to go to the Court of Appeals.
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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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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.
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