Key Takeaway
Appellate Term reverses trial court ruling that prevented insurance company from defending IME no-show case, clarifying that denied summary judgment motions don't preclude trial defenses.
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.
Understanding IME No-Show Defenses in No-Fault Insurance Cases
Independent Medical Examinations (IMEs) serve as a crucial tool for insurance companies to verify claims under New York No-Fault Insurance Law. When patients fail to appear for scheduled IMEs, insurers often assert this as a defense to deny coverage, arguing the claimant failed to comply with policy conditions. However, procedural complications can arise when courts make premature determinations about the viability of such defenses.
The Progressive Orthopedics case demonstrates an important principle: a trial court’s denial of summary judgment doesn’t automatically eliminate an insurer’s ability to present that same defense at trial. This distinction becomes particularly significant in IME no-show cases, where the evidence supporting the defense may require thorough examination beyond what’s possible in summary judgment proceedings.
Jason Tenenbaum’s Analysis:
Progressive Orthopedics, PLLC v Hertz Corp., 2017 NY Slip Op 27193 (App. Term 2d Dept. 2017)
(1) “The Civil Court did not allow defendant to present any evidence in support of its defense that plaintiff’s assignor had failed to appear for duly scheduled IMEs, which would constitute a failure to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ), because the court held that a prior order of the same court (Wavny Toussaint, J.), which had denied defendant’s summary judgment motion based on that failure to appear, had already determined that defendant could not establish that defense.”
(2) As per Vitality Chiropractic, P.C., the denial of a motion for summary judgment in and of itself establishes nothing
(3) Decision reversed
Legal Significance
The Appellate Term’s decision in Progressive Orthopedics clarifies a fundamental principle of New York civil procedure: the denial of a motion for summary judgment represents only a determination that triable issues of fact exist, not a final adjudication on the merits. This distinction carries significant weight in no-fault insurance litigation, where insurers frequently raise IME no-show defenses that may not be suitable for summary judgment disposition due to factual disputes about proper scheduling, mailing, or the claimant’s reasons for non-appearance.
The trial court’s error stemmed from conflating the summary judgment standard with the trial standard of proof. On summary judgment, an insurer must demonstrate entitlement to judgment as a matter of law by establishing, prima facie, that the IME was properly scheduled and the claimant failed to appear without justification. When the plaintiff raises a factual dispute—such as non-receipt of the scheduling letter or a reasonable excuse for non-appearance—summary judgment must be denied. However, this denial does not mean the insurer loses the defense entirely; it simply means the issue must be resolved through trial where witness credibility and conflicting evidence can be properly evaluated.
This ruling aligns with the broader principle established in Vitality Chiropractic, P.C., which emphasized that denied summary judgment motions do not establish anything about the ultimate merits of a case. Courts must evaluate trial evidence de novo without being bound by prior determinations made on incomplete records during summary judgment proceedings.
Practical Implications
For insurance companies defending no-fault claims, this decision provides crucial strategic clarity. Even when summary judgment is denied on an IME no-show defense, insurers should continue to develop that defense for trial. This includes preserving evidence of proper mailing procedures, maintaining detailed records of IME scheduling practices, and preparing witnesses who can testify about office procedures and the specific circumstances surrounding the missed examination.
The decision also underscores the importance of clear trial advocacy. Defense counsel must explicitly object when trial courts attempt to preclude defenses based solely on denied summary judgment motions. Failure to make a timely objection could waive appellate review of this issue, potentially forfeiting an otherwise viable defense.
For healthcare providers pursuing no-fault claims, the ruling serves as a reminder that defeating summary judgment does not end the litigation. Providers must be prepared to address IME no-show defenses at trial, which may require the testimony of assignors who missed examinations and documentary evidence supporting any claimed excuse for non-appearance. When assignors have legitimate reasons for missing IMEs—such as non-receipt of notices, scheduling conflicts, medical emergencies, or transportation issues—providers should document these circumstances contemporaneously and preserve evidence to present at trial.
Key Takeaway
Trial courts cannot prevent insurance companies from presenting IME no-show defenses at trial simply because a previous summary judgment motion on the same issue was denied. The Appellate Term’s reversal reinforces that denied summary judgment motions don’t establish the merits of underlying defenses, ensuring parties retain their right to present evidence at trial.
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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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May 16, 2012Common Questions
Frequently Asked Questions
What is an Independent Medical Examination (IME)?
An IME is a medical examination conducted by a doctor chosen by the insurance company to evaluate the claimant's injuries and treatment. In no-fault cases, insurers use IMEs to determine whether ongoing treatment is medically necessary, whether the injuries are causally related to the accident, and whether the claimant has reached maximum medical improvement. The results of an IME can form the basis for a claim denial or cut-off of benefits.
Can I refuse to attend an IME?
No. Under New York's no-fault regulations, attending an IME when properly scheduled is a condition precedent to receiving benefits. However, the insurer must follow specific scheduling procedures — including providing reasonable notice and accommodating certain scheduling conflicts. If the insurer fails to properly schedule the IME or you have a legitimate reason for missing it, the resulting denial may be challenged.
How should I prepare for an Independent Medical Examination?
Be honest and thorough when describing your symptoms, limitations, and treatment history. Arrive on time with photo ID and be prepared for a physical examination that may test your range of motion and functional abilities. The IME doctor works for the insurance company and may spend limited time with you, so clearly communicate your ongoing symptoms. Your attorney can advise you on what to expect and review the IME report for accuracy afterward.
What is maximum medical improvement (MMI) in no-fault cases?
Maximum medical improvement (MMI) means the point at which your condition has stabilized and further treatment is unlikely to produce significant improvement. When an IME doctor determines you have reached MMI, the insurer may cut off further no-fault benefits. However, reaching MMI does not necessarily mean you have fully recovered — you may still have permanent limitations. Your treating physician can dispute the MMI finding through a detailed rebuttal affirmation.
Can I challenge an IME doctor's findings in my no-fault case?
Yes. If an IME results in a denial or cut-off of benefits, your treating physician can submit a sworn affirmation rebutting the IME findings point by point. The rebuttal should reference specific clinical findings, objective test results, and range-of-motion measurements that contradict the IME conclusions. At arbitration or trial, the fact-finder weighs both the IME report and the treating physician's opinion. An experienced no-fault attorney can identify weaknesses in the IME report.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
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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