Key Takeaway
Utica Acupuncture v Amica: an unexplained two-year recollection defeated IME summary judgment. Compare the separate 2025 EUO time-lapse decision.
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: Utica rejected an unexplained IME recollection; the distinct GC Chiropractic EUO ruling (2025) accepted the attorney’s affirmation on renewal despite elapsed time, without overruling Utica.
In Utica Acupuncture v Amica, the IME doctor’s affirmation did not adequately explain how she recalled the assignor’s nonattendance roughly two years later. On March 20, 2017, the Appellate Term, First Department reversed summary judgment for the insurer and denied its motion.
The recollection problem and the later EUO comparison
The defect was the unexplained basis of recollection. The court did not impose an automatic two-year expiration date for affidavits or find that no examiner could genuinely remember a missed appointment. It also expressly declined to address the provider’s waiver argument. Jason’s two numbered points below are his practical reading of the proof problem, not a two-part test quoted from the opinion.
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A later comparison is GC Chiropractic (2025), an Appellate Term, Second Department EUO case. On renewal, the court accepted an attorney’s affirmation executed about three years after the no-shows; mailing of the notices and denials had already been established. That is a different examination, witness and record. Elapsed time alone was not enough in GC Chiropractic. That does not make it an overruling of Utica or an endorsement of every old affirmation.
Jason’s original note
Jason’s two original practical notes follow. They are his commentary, not an exclusive two-part test stated by the court.
(1) Personal knowledge
(2) Some procedure about no-shows being notated or a review of file and based upon procedure, affiant can affirmatively state the assignor failed to appear.
Connect to the Encyclopedia
Start with the IME no-show case directory, then compare these related records:
- Compas: separate IME and fee-schedule proof problems
- T & J: sworn statements without demonstrated personal knowledge
- SIGNET reports and the problem of proving actual nonattendance
- Three 2015 decisions on inadequate IME and EUO proof
- MB Advanced: conflicting affidavits about the examination location
- GC Chiropractic: the distinct 2025 EUO time-lapse ruling
For review of a particular claim, our no-fault defense practice can assess the notices, denials and motion papers. Contact the office to discuss the file. For broader background, see New York no-fault insurance law.
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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Feb 12, 2015Frequently Asked Questions
Common Questions About This Topic
3 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
What does an insurer have to prove for an IME no-show defense?
Properly supported IME notice and nonattendance proof are necessary; the governing appellate authority also determines the applicable coverage and preclusion rules. Utica addresses the basis of the doctor's recollection, not every element of an IME defense.
Why was the IME doctor's affirmation rejected in Utica Acupuncture?
The doctor did not adequately explain the basis for recalling the alleged nonattendance about two years later. The court described the affirmation as conclusory. It did not hold that every two-year-old recollection is impossible.
How can an affiant competently swear that someone failed to appear years earlier?
The affidavit or affirmation must explain the basis for the factual account. Jason suggested personal knowledge and properly explained records or procedures. Utica does not prescribe an exclusive formula, and the later GC Chiropractic EUO decision shows that elapsed time alone is not always disqualifying.
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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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