The first citing of 65-3.5(p) – somewhat ominous

The first point about Lida’s Medical Supply v Hereford Insurance Co. is what it did not decide. On August 16, 2019, the Appellate Term declined to consider the insurer’s argument under 11 NYCRR 65-3.5(p) because it was raised for the first time on appeal. The case is a preservation warning, not a merits holding that the subsection excuses late IME follow-ups.

Legal Update: Lida’s declined to decide section 65-3.5(p) because the argument was first raised on appeal. A later trial-level arbitration-review decision, Friendly RX (2026), did not treat missing proof of requests and nonreceipt as an immaterial defect. Neither establishes a universal grace period. The statutory 30-day rule is in Insurance Law § 5106(a), not § 5106(b).

Last reviewed: September 2026.

The historical title reflects Jason’s reaction to the citation in 2019. This review does not claim to have established the first citation anywhere in the courts. The page concerns verification and IME timing, not a ruling creating a right of recoupment.

Both sides had problems with their motions

The insurer sought dismissal based on the assignor’s alleged failure to attend scheduled independent medical examinations. The provider moved for summary judgment. Civil Court granted the provider’s motion and denied the insurer’s cross-motion.

On appeal, the provider lost its judgment. Its proof did not establish that the claims were not timely denied or that timely denials were legally insufficient in the ways the opinion discussed.

But the insurer did not obtain dismissal. It failed to establish that its follow-up IME scheduling letter was timely. Its cross-motion therefore remained denied.

The result was not a victory on the merits of either party’s claim. Each side’s request for judgment had its own evidentiary burden, and each failed to establish entitlement to that relief.

Read subsection (p) alongside the neighboring provisions

11 NYCRR 65-3.5(p) states that nonsubstantive technical or immaterial defects or omissions, as well as an insurer’s failure to meet a prescribed timeframe, do not negate the applicant’s obligation to comply with a verification request or notice. The subsection specifies its application to services and expenses on or after April 1, 2013.

Other provisions address different parts of the process. Section 65-3.5(b) sets the insurer’s additional-verification request period after receipt of completed forms. Section 65-3.5(d) concerns scheduling a medical examination within 30 calendar days of receiving the prescribed forms. Section 65-3.6(b) addresses follow-up.

Section 65-3.8(a)(1) addresses when benefits become overdue after proof of claim, including relevant requested verification. And Insurance Law § 5106(a) contains the statutory 30-day rule. The reference to section 5106(b) in Jason’s original commentary below is a pinpoint error: subsection (b) concerns the arbitration option.

The effect of a late request depends on the provision invoked and the record supporting the defense. The applicant’s compliance obligation, the request’s timing, the proof of mailing and nonappearance, and the effect on a particular defense are related but separate questions.

Why preservation mattered

Hereford’s subsection (p) argument did not obtain a merits ruling because the insurer first advanced it on appeal. Lida’s therefore cannot be cited as accepting or rejecting every possible interpretation of that subsection.

For another case, identify the legal ground in the trial-court papers and connect it to the relevant record. The court needs the claim dates, the notices, proof of their transmission and evidence of any alleged nonappearance. A quotation from a regulation cannot establish missing facts.

The archive’s late EUO follow-up note concerns section 65-3.8(l), a different provision. Its result and the First Department’s fact-specific timing cases need their own analysis. Neither supplies the merits ruling Lida’s expressly declined to make.

A later example: missing proof is not a minor defect

In American Transit v Friendly RX, decided January 8, 2026, Supreme Court, New York County, denied a petition to vacate and confirmed a master arbitration award. The arbitrators had identified missing proof of proper EUO scheduling, mailing of requests and nonreceipt of verification.

The court quoted the master arbitrator’s conclusion that those failures could not be treated as merely technical or immaterial under subsection (p). It found a rational basis for the award and declined to vacate it.

That is a trial-level decision reviewing an arbitration award under a limited standard, not an Appellate Division ruling resolving every late-follow-up dispute. Its useful point here is narrower: invoking subsection (p) does not supply evidence that the underlying request or nonreceipt was proved.

How to use this note

Start by identifying whether the dispute is about an actual timing defect or a failure to prove the dates at all. Then identify whether the requested verification was an IME, an EUO or documents, and which regulatory provision and effective date apply.

Keep the motion result separate from the final merits. Lida’s rejected the provider’s proof for its own motion and the insurer’s proof for its cross-motion. That is why the verification trial discussion is a useful next stop: unresolved facts still require proof.

Jason’s original concern about how the rules would be read together remains part of the historical record. The current explanation identifies the unanswered question, corrects the statutory pinpoint and adds a later example without claiming that the entire question is settled.

Jason’s original commentary

The original comments below are retained as historical commentary. The case-specific corrections and later developments are explained above.

The problem with this argument is that (p) on its face subverts 3.5(d), 3.5(b) and 3.6(b). It also conflicts with 5106(b) as to the 30-day pay or deny rule. In terms of an IME, 3.5(d) would have to control and 3.6(b) would be on point as to the follow-up. I could see 3.5(p) construed or “harmonized” to allow a late follow-up verification, but not a terribly late follow-up verification. It is an interesting paradigm on its face.

In the old days, we would ask Chris Maloney or Larry Fuchsberg for their opinion on the interplay between 3.5(p), 3.5(b), 3.6(b) and 3.5(d). But the opinion letter days ended before most attorneys in no-fault obtained their law licenses. I would love to know what DFS has to say. It will be up to the Court on a proper record to interpret 3.5(p). That worries me.

Connect to the Encyclopedia

Start with the no-fault verification hub and 2026 Chapa update for the governing framework and case directory. Related case notes:

• Burke Physical Therapy: a qualified response affidavit.
• Island Life: proof at a limited verification trial.
• Acupuncture Healthcare Plaza: a late EUO follow-up.
• The 2009 Infinity appeal: from pending issue to decision.
• Great Health Care: evidence that verification was mailed.

For review of a particular no-fault verification dispute, request a Free Case Review. Keep the requests, responses and relevant claim dates available for that review.