Key Takeaway
Progressive Health: mutual advance rescheduling was not an IME no-show. Separate mailing and nonreceipt affidavits left claim submission for trial.
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A mutually agreed IME rescheduling was not a missed appointment in Progressive Health Chiropractic v American Transit Insurance Co., decided April 27, 2017. The Appellate Term, Second Department, removed the insurer’s summary-judgment victory. The provider’s cross motion remained denied.
Historical note: Progressive Health (2017) separates an agreed appointment change from a no-show and leaves conflicting claim-receipt evidence for trial; it does not authorize ignoring an IME notice.
Last reviewed: September 2026.
Original court excerpt selected in the archive
The original note quoted the court’s rescheduling holding:
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“we do not consider a mutual rescheduling, which occurs prior to the date of that scheduled IME, to constitute a failure to appear”
Two claims, two unresolved proof issues
For one claim, the insurer’s affidavits did not establish two missed IMEs: an appointment had been moved by mutual agreement before its scheduled date. The provider still did not establish that the denial was untimely or that the no-show defense lacked merit as a matter of law. Neither side won judgment on that record.
A separate claim concerned receipt of the bill. The insurer’s examiner supplied evidence of nonreceipt, while the provider’s employee said he personally generated and mailed the claim. That mailing evidence raised a presumption of receipt, but the result was a factual dispute. It was not a conclusive finding that the insurer received the bill.
Keep the two mailings distinct. The appointment history addresses whether a no-show occurred; the billing history addresses whether the claim was submitted. Save the agreement changing an appointment, rather than relying on a later recollection that someone asked to reschedule. This decision involved mutual agreement, not a unilateral request that the insurer never accepted.
BR Clinton is another example of a provider defeating part of an insurer’s motion without establishing its own right to judgment.
Connect to the Encyclopedia
Start with the IME no-show topic hub, then compare these related notes:
- Renelique: address mismatch and attorney notice
- BR Clinton: a gap in denial-mailing proof
- Faith: insufficient office-mailing proof
- Colin: matching NF-2 and NF-3 addresses
For review of a particular no-fault dispute, contact the firm with the appointment letters, relevant claim forms and motion papers.
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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