Key Takeaway
Total Chiropractic v Hereford left both summary judgment motions denied. Read the post-claim IME timing issue alongside the provider's separate burden.
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.
Last reviewed: September 2026.
Historical note: Total Chiropractic addresses a post-claim examination; Gaines (2025, First Department) distinguishes pre-claim notices and rejects a bill-by-bill coverage analysis, so the two scheduling records should not be conflated.
Both motions failed in Total Chiropractic. The initial IME was scheduled too late for the insurer to obtain summary judgment, but the provider had not established its own right to judgment either.
Jason’s original note
Total Chiropractic, P.C. v Hereford Ins. Co., 2020 NY Slip Op 51362(U)(App. Term 2d Dept. 2020)
“However, contrary to defendant’s further argument, defendant did not demonstrate that it is entitled to summary judgment dismissing the complaint based on plaintiff’s assignor’s failure to appear for IMEs, as the initial IME had not been scheduled to be held within 30 calendar days after defendant’s receipt of plaintiff’s claims (see 11 NYCRR 65-3.5 ).”
Post claim action.
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What the 30-day rule measures
Total Chiropractic v Hereford, decided November 13, 2020, left both motions denied. The provider had not shown that its claims were untimely denied or that the timely denials were conclusory, vague or legally meritless. The insurer’s initial examination was scheduled outside 30 calendar days after receipt of the claims.
11 NYCRR 65-3.5(d) requires a medical examination sought as additional verification to be scheduled to be held within 30 calendar days after receipt of the prescribed verification forms. Sending the letter within that period is not the same as holding the examination within it. A motion record needs the relevant receipt date and examination date.
Pre-claim scheduling raises a different question. In Nationwide v Gaines (2025), the First Department held that the verification-notice requirements did not apply to IME notices sent before the claims arrived. It also treated the resulting coverage defense as applying beyond individual bills.
For an actual dispute, first identify what the insurer received and when it sent the notices. Then examine the notice and attendance evidence under the authority governing that court. Total Chiropractic does not establish that every timing defect excuses attendance or that a provider automatically wins when the carrier’s motion fails.
Connect to the Encyclopedia
Start with the IME no-show case directory.
- City Anesthesia: pre-claim IMEs and the NF-2
- Village Medical: verification and timely denial after missed IMEs
- Four 2011 insurer wins with timely-denial proof
- Sharp View: insufficient proof of mailing
- Harmonic: the Unitrin coverage analysis
For review of a particular no-fault dispute, contact the firm with the scheduling letters, claim chronology and motion papers.
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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Dec 8, 2013Frequently 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 examination sought 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. Total Chiropractic applied that rule to its post-claim chronology. Pre-claim notices raise a different timing question.
Can an insurer deny a no-fault claim if the patient misses an IME that was scheduled late?
Total Chiropractic denied the insurer summary judgment because its initial examination was scheduled outside the applicable 30-day period. It did not award judgment to the provider either. The result does not mean every technical or timing defect excuses attendance; the notice, chronology and governing authority still need review.
What should a provider check first when opposing an IME no-show motion?
Identify what documents the insurer received, the receipt dates, when notices were sent and when examinations were scheduled. Distinguish pre-claim notices from post-claim verification. Review the mailing and nonattendance evidence as well; a scheduling objection does not establish the provider's own entitlement to judgment.
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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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