Key Takeaway
Court rejects attorney affirmation lacking personal knowledge in IME no-show case, highlighting the importance of proper evidence in no-fault insurance disputes.
No-fault insurance disputes often hinge on procedural requirements, particularly when it comes to Independent Medical Examinations (IMEs). When an injured party fails to appear for a scheduled IME, insurance companies typically deny claims based on non-cooperation. However, successfully defending against such denials requires more than just an attorney’s word—it requires proper evidence with personal knowledge.
In Medcare Supply, Inc. v Global Liberty Ins., the First Department addressed a critical evidentiary issue that frequently arises in New York No-Fault Insurance Law cases: what constitutes sufficient proof to counter an insurer’s prima facie case for IME non-attendance.
Jason Tenenbaum’s Analysis:
Medcare Supply, Inc. v Global Liberty Ins., 2020 NY Slip Op 50231(U) (1st Dept. 2020)
” Defendant’s moving papers demonstrated, prima facie, that defendant had timely mailed both the IME scheduling letters and the denial of claim form (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ), and that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ). In opposition, plaintiff proffered an affirmation by its assignor’s counsel, who did not assert that she possessed personal knowledge of the facts. Consequently, plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion (see Zuckerman v City of New York, 49 NY2d 557 ). ”
In this case, the attorney for the Assignor signed an affirmation explaining why her client failed to attend the IMEs. The court found this insufficient. Perhaps, Plaintiff would have had better luck in arbitration where the rules of evidence do not apply?
Key Takeaway
This case underscores a fundamental principle in no-fault litigation: attorney affirmations must be based on personal knowledge to have evidentiary value. When challenging IME no-show denials, practitioners cannot simply rely on counsel’s statements without establishing their foundation in direct knowledge of the underlying facts.
