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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.
When Insurance Companies Fail to Prove IME Notice Was Properly Mailed
In New York no-fault insurance law, Independent Medical Examinations (IMEs) are a critical tool for insurers to evaluate claims. However, when a patient doesn’t appear for an IME, the insurance company must prove they provided proper notice. A recent Appellate Term decision demonstrates what happens when that proof falls short.
The case K.O. Med., P.C. v Mercury Cas. Co. involved a provider seeking payment for services that were denied based on the patient’s failure to appear for scheduled IMEs. The insurance company moved for summary judgment, arguing they had properly scheduled the examinations and the patient simply didn’t show up. However, the court found their documentation insufficient to establish that the IME scheduling letters were actually mailed.
This decision underscores a common issue in no-fault litigation: the burden of proving proper mailing procedures. Unlike situations where IME letters do not need to be sent to provider, insurers must still demonstrate they followed correct protocols when notifying patients. Cases involving no-show substantiated claims often turn on these procedural details.
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K.O. Med., P.C. v Mercury Cas. Co., 2017 NY Slip Op 51158(U)(App. Term 2d Dept. 2017)
I reviewed the papers. The IME vendor changed the affidavit that was sent and inter-changed the defunct “Crosslands” with “Examworks” (the successor) entity. There was no discussion regarding the jural relationship between the two entities. I only realized that when I reviewed the papers after receiving the decision. Ironically, I was not the only one to miss that salient point. The Appellate Time signed an OSC granting us a stay of trial and granted the application motion to stay. Neither of these are easy feats. More finely tuned eyes saw the mistake. I will say this: they have a good set of proof-readers at that court. They find things all the time I never find.
“The Civil Court properly denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims that had been denied based upon plaintiff’s assignor’s failure to appear for the IMEs, as the proof submitted by defendant was not sufficient to give rise to a presumption that the IME scheduling letters at issue had been properly mailed”
Key Takeaway
Insurance companies must provide adequate proof of proper mailing procedures when denying claims based on IME no-shows. This case highlights how even seemingly minor documentation issues, such as entity name changes without establishing corporate relationships, can undermine an insurer’s defense and prevent summary judgment.
Related Articles
How New York Mailing & Proof of Service Law Has Evolved
Verified February 2026This topic has been shaped by appellate rulings over many years. Explore the timeline below.
- Certified Mail RRR Sufficient to Prove Mailing
Proof of actually mailing via certified mail with return receipt requested is sufficient to prima facie demonstrate proper mailing.
- "I Was Employed with [BLANK] When the Mailing Occurred"
Court scrutinizes the adequacy of affidavits attesting to mailing procedures — vague averments questioned.
- The Appellate Division Weighs In on the Mailing Paradigm
Appellate Division provides first comprehensive guidance on what proof of mailing requires.
- First Department's 'Venom' Decision on Mailing
First Department establishes its own mailing proof requirements — setting a high bar for insurers.
- How Do You Overcome the Presumption of Mailing?
Analysis of how claimants can overcome the presumption of proper mailing — non-receipt testimony and office procedure gaps.
- Mailing Discrepancies and Proving Non-Receipt
Discrepancies in mailing records and methods to affirmatively prove non-receipt of documents.
- Mailing from the Court of Appeals
Court of Appeals weighs in on mailing standards — a pivotal, binding precedent for all lower courts.
- IME No-Show: It Was Not Mailed
Hub article: comprehensive analysis of proof-of-mailing standards. Courts have progressively tightened requirements — proper mailing affidavits with detailed office procedures are now essential.
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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