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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.
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)
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” 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.
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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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