Key Takeaway
Success Rehab v Hereford: why neither side won summary judgment, and how post-claim IME timing differs from pre-claim notices.
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.
In Success Rehab v Hereford, the insurer failed to obtain summary judgment on an IME no-show defense. The provider’s judgment was reversed as well. The December 13, 2019 decision left both sides to prove their claims.
Historical note: Success Rehab addresses post-claim IME timing; Gaines (2025, First Department) distinguishes notices sent before claims arrive and rejects a bill-by-bill coverage analysis.
Last reviewed: September 2026.
Why neither side won summary judgment
Hereford acknowledged receiving nine claims between May 13 and June 19, 2015. The first examination was set for August 3. The Appellate Term applied the 30-calendar-day rule to those claims. Hereford’s motion did not address the other three, and it could not introduce a new argument on appeal. The provider, meanwhile, had not established the denial-related showing required for its own summary judgment motion.
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Identify the request before counting days
For an IME requested as additional verification, 11 NYCRR 65-3.5(b) and (d) distinguish the request deadline, 15 business days after receipt of prescribed verification forms, from the requirement to schedule the examination to be held within 30 calendar days. Beckles and the NF-3 address proof in a post-claim record.
Gaines (2025) addresses a different situation: notices sent before receipt of claims. The First Department held that the verification-notification rules did not apply there and rejected a bill-by-bill coverage analysis. Success Rehab should not be read as requiring a new examination for every later bill, or as permission to ignore an examination notice. The chronology and the insurer’s proof still need review.
Jason Tenenbaum’s original note (2020)
Success Rehab, PT, P.C. v Hereford Ins. Co., 2019 NY Slip Op 52031(U) (App. Term 2d Dept. 2019)
“Contrary to defendant’s contention, defendant did not establish its entitlement to summary judgment. Defendant acknowledged that it had received 9 of the 12 claims at issue between May 13, 2015 and June 19, 2015 and that plaintiff’s assignor’s first IME was scheduled for August 3, 2015. As that IME had not been scheduled to be held within 30 calendar days after defendant had received those claims, defendant did not demonstrate its entitlement to summary judgment dismissing so much of the complaint as sought to recover upon those claims based upon the assignor’s failure to appear for IMEs (see 11 NYCRR 65-3.5 “
Frequently Asked Questions
How long does a no-fault insurer have to schedule an IME in New York?
For an IME requested as additional verification, 11 NYCRR 65-3.5(d) requires it to be scheduled to be held within 30 calendar days after receipt of the prescribed verification forms. Subdivision (b) separately addresses the additional-verification request deadline. Pre-claim notices raise a different timing question.
What happens if the IME is scheduled more than 30 days after the claims were received?
In Success Rehab, that chronology prevented summary judgment for the insurer on nine claims. The court did not award the provider judgment either. The result is not a blanket rule that every timing defect forfeits coverage defenses or excuses attendance; the applicable rule and proof must be examined.
Does the 30-day IME clock run from the NF-2 application or from the bills?
Success Rehab applied the examination-date requirement to claims already received. Identify the prescribed forms and receipt dates for the additional-verification request. Do not assume every IME is post-claim: Gaines distinguishes notices sent before claims arrive and rejects a bill-by-bill coverage analysis.
Connect to the Encyclopedia
Start with the IME no-show topic hub.
- Beckles: the NF-3 and duly noticed examinations
- Alev Medical Supply: written verification and denial timing
- Avalon Radiology: EUO timing and a new trial
- Valdan: reply evidence and the address known at mailing
- By MD: mailing proof and the presumption of receipt
For review of a particular notice, claim file or motion, contact the Law Office of Jason Tenenbaum.
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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Mar 15, 2011Frequently Asked Questions
Common Questions About This Topic
3 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
How long does a no-fault insurer have to schedule an IME in New York?
For an IME requested as additional verification, 11 NYCRR 65-3.5(d) requires it to be scheduled to be held within 30 calendar days after receipt of the prescribed verification forms. Subdivision (b) separately addresses the additional-verification request deadline. Pre-claim notices raise a different timing question.
What happens if the IME is scheduled more than 30 days after the claims were received?
In Success Rehab, that chronology prevented summary judgment for the insurer on nine claims. The court did not award the provider judgment either. The result is not a blanket rule that every timing defect forfeits coverage defenses or excuses attendance; the applicable rule and proof must be examined.
Does the 30-day IME clock run from the NF-2 application or from the bills?
Success Rehab applied the examination-date requirement to claims already received. Identify the prescribed forms and receipt dates for the additional-verification request. Do not assume every IME is post-claim: Gaines distinguishes notices sent before claims arrive and rejects a bill-by-bill coverage analysis.
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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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