Key Takeaway
Court rules IME no-show defense fails when insurer didn't schedule exam within required 30-day timeframe under NY regulations 11 NYCRR 65-3.5.
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Thomas J. Tesi, M.S., D.C., P.C. v Hereford Ins. Co., 2018 NY Slip Op 50252(U)(App. Term 2d Dept. 2018)
“However, contrary to defendant’s further argument, defendant did not demonstrate that it is entitled to summary judgment dismissing the complaint based on plaintiff’s assignor’s failure to appear for IMEs, as the initial IME had not been scheduled to be held within 30 calendar days after defendant’s receipt of plaintiff’s claims (see 11 NYCRR 65-3.5 ).
Defendant’s remaining contentions lack merit.”
I sense the lack merit is the 65-3.5(p) argument this law firm usually makes. This argument in First Department parlance is unavailing or, in Second Department parlance, lacks merit. This is why.
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Regulations are read like statues. See the following:
(1) “The legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction. (Statute Sec. 94)
(2) “A basic consideration in the interpretation of a statute is the general spirit and purpose underlying its enactment, and that construction is to be preferred which furthers the object, spirit and purpose of the statute.” (Statute Sec 96)
(3) “A statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent *Stat. Law § 97 )
If 3.5(d) states that the carrier has 30-days to schedule the IME and 3.5(p) says “an insurer’s non-substantive technical or immaterial defect or omission, as well as an insurer’s failure to comply with a prescribed time frame, shall not negate an applicant’s obligation to comply with the request or notice”, how can you harmonize the two?
The first regulation is on point. The second regulation discuses non-substantive defects or omissions and the failure to to comply with geberal time frames not negating the obligation to comply with a notice.
The two regulations are at complete odds with each other, if read literally.
3.5(p) would literally destroy every verification time frame and be at odds with the 30-day pay or deny rule. I cite to statute 145: “A construction which would make a statute absurd will be rejected.”
Under Statutes 94, 96 ,97, and 145, 11 NYCRR 65-3,5 (p) would have to yield to the regulations that are on point (11 NYCRR 5- 3.5; 3.6; 3.8).
This is why the line of reasoning I see from this firm as probably incorrect.
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Legal Update (February 2026): Since this 2018 post, 11 NYCRR Part 65 regulations governing IME scheduling and procedures may have been amended or updated. Practitioners should verify current provisions of 11 NYCRR 65-3.5 regarding IME scheduling timeframes and related procedural requirements, as regulatory changes could affect the analysis of IME no-show defenses.
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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