Key Takeaway
NY Court of Appeals ruling on no-fault insurance IME requirements and declaratory judgment procedures in Hereford v Lida's Medical Supply case analysis.
This article is part of our ongoing declaratory judgments coverage, with 42 published articles analyzing declaratory judgments 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.
Hereford Ins. Co. v Lida’s Med. Supply, Inc., 2018 NY Slip Op 03226 (1st Dept. 2018)
(1) “While plaintiff’s notice of motion did not specify that it was solely moving for summary judgment on its first cause of action, its attorney’s affirmation shows that they were limiting the relief sought to this claim.” (if this is a volume business a pro-forma motion, then why not have a software system that indicates this)
(2) “When an individual submits a personal injury claim for motor vehicle no-fault benefits, the insurance company may request that the individual submit to an IME, and if the individual fails to appear for that IME, it “constitutes a breach of a condition precedent vitiating coverage””
(3) “Here, plaintiff established its entitlement to judgment as a matter of law by submitting the letters sent to each claimant notifying them about the date, time, and location of the initially scheduled IME and a second scheduled IME and affidavits of service for these letters. Plaintiff also submitted affidavits from each medical professional assigned to conduct the scheduled IME, with each stating that the medical professional was in his or her office at the date and time of the scheduled IME, the respective claimant failed to appear, the appointment was kept open until the end of the day, and at the end of the day, the medical professional filled out the affidavit acknowledging the nonappearance.”
(4)”Because Hereford sent the notices scheduling the IMEs prior to the receipt of each of the claims, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply (see Mapfre at 469). Furthermore, plaintiff was not required “to demonstrate [*2]that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense” (American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424-25 ]).”
Two things to take from this.
First, the All of NY case was limited to a provider EUO no show DJ predicated upon a record missing demonstrative evidence. In contrast, this was the boilerplate IME no-show DJ. The result makes sense and is consistent with prior precedent.
Second, I think the proof of the no-show here is a lot less than the line of cases that the Appellate Term, First Department created. But this would make sense when you look at how these panel judges when all of them sat in no-fault land (Civil and Supreme Court DJ parts).
Related Articles
- Understanding New York No-Fault Insurance EUO Requirements: Why DFS Does Not Approve Improper Disclaimers
- DJ went south
- Where was the reasonable excuse?
- Supplemental affirmation on a DJ case acceptable and res judicata mandates dismissal of complaint
Legal Update (February 2026): Since this 2018 post, the No-Fault regulations under 11 NYCRR 65-3, particularly sections 65-3.5 and 65-3.6 regarding IME procedures and notice requirements, may have been amended or updated. Additionally, procedural requirements for declaratory judgment motions and IME scheduling protocols may have evolved through subsequent regulatory changes or court decisions, so practitioners should verify current provisions before relying on the analysis presented.
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.
About This Topic
Declaratory Judgment Practice in New York
Declaratory judgment proceedings provide a mechanism for parties to obtain binding judicial determinations of their legal rights and obligations. In insurance litigation, declaratory judgments are commonly sought to resolve disputes over policy coverage, fraud allegations, and the enforceability of policy conditions. These articles analyze declaratory judgment procedure, the standards courts apply, and the strategic implications of seeking or defending against declaratory relief in New York insurance cases.
42 published articles in Declaratory Judgments
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Jun 30, 2018Common Questions
Frequently Asked Questions
What is a declaratory judgment action in no-fault insurance?
A declaratory judgment action is a lawsuit asking the court to determine the rights and obligations of the parties — typically whether an insurer has a duty to pay no-fault benefits. Insurers often file these actions to establish they have no obligation to pay, citing policy exclusions, fraud, or coverage disputes.
When do insurers file declaratory judgment actions?
Insurers commonly file declaratory judgment actions when they believe a policy is void due to material misrepresentation, the loss was intentional, or there is a coverage dispute. Under NY Insurance Law, the insurer must demonstrate a justiciable controversy and typically seeks a declaration that it has no duty to indemnify or defend.
How does a declaratory judgment affect my no-fault benefits?
If the court rules in the insurer's favor, your no-fault benefits may be terminated. However, if the insurer fails to meet its burden of proof or did not timely commence the action, the court may rule in your favor, requiring the insurer to continue paying benefits. Having experienced counsel is critical in these proceedings.
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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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