Proving an IME No-Show: Personal Knowledge vs. Business Records in New York No-Fault Cases

Understanding Evidence Standards in No-Fault Insurance Cases

In New York no-fault insurance law, insurance companies frequently deny claims based on a patient’s failure to appear for Independent Medical Examinations (IMEs). However, proving that someone didn’t show up for an appointment requires more than just someone’s word—it requires proper documentation and evidence foundations.

The distinction between personal testimony and business records becomes critical when insurance companies attempt to deny benefits. While personal knowledge testimony has its place in legal proceedings, establishing that an event didn’t occur often requires more substantial proof, particularly in the context of no-fault insurance disputes where documentation standards are strictly scrutinized.

The Decision

Jason Tenenbaum’s Analysis:

Psychology After Acc., P.C. v New York Cent. Mut. Fire Ins. Co., 2021 NY Slip Op 51072(U)(App. Term 2d Dept. 2021)

“The proof submitted by defendant was sufficient to demonstrate that plaintiff’s assignors had failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ; cf. Satya Drug Corp. v Global Liberty Ins. Co. of NY, 65 Misc 3d 127, 2019 NY Slip Op 51505 ), which showing plaintiff failed to rebut”

When someone avers that they were present somewhere and an event did not occur, that is different than laying a business record foundation for the proof that the even did not occur.

The IME No-Show Defense, Step by Step

The IME no-show defense is one of the most heavily litigated issues in New York no-fault practice. The framework is well settled: appearance at a properly scheduled independent medical examination is treated as a condition precedent to the insurer’s liability on the policy. To prevail on the defense, the carrier generally has to establish two distinct things with admissible evidence.

First, the carrier must show that the IME scheduling letters were properly mailed to the claimant (and counsel, where applicable). This is usually done through an affidavit describing the standard office practice and procedure of whoever generated and mailed the letters — frequently a third-party IME scheduling vendor — sufficient to raise a presumption of mailing.

Second, the carrier must prove the negative: that the assignor actually failed to appear on the scheduled dates. This is where the evidentiary question addressed in Psychology After Accident lives, because proving that something did not happen is conceptually harder than proving that it did.

Proving a Negative: Presence vs. Paperwork

There are two basic ways a carrier can try to establish non-appearance, and they rest on different evidentiary foundations.

The first is personal knowledge. A physician or office employee who was physically present at the IME facility on the scheduled date and time, who was in a position to know whether the claimant arrived, swears that the claimant never appeared. That witness is testifying to a fact within their own observation. The affidavit must actually demonstrate the basis for that knowledge — that the affiant was there, would have seen or been notified of the claimant’s arrival, and was not simply reciting what a file reflects.

The second is the business records route: records made and kept in the ordinary course of the examiner’s or vendor’s business — appointment logs, sign-in sheets, contemporaneous no-show notations — offered under a business-record foundation. Here the affiant need not have personally witnessed anything, but must establish the record-keeping foundation: that the records were made in the regular course of business, that it was the regular course of that business to make them, and that they were made at or about the time of the events recorded.

The point of this post’s title is that litigants and courts sometimes blur the two. An affidavit reciting that “the claimant failed to appear” based on a review of the file is neither personal knowledge nor a properly founded business record. As the decision illustrates, when the defendant’s proof is sufficient under one of these theories and the plaintiff offers nothing to rebut it, summary judgment follows.

Why This Matters

For medical providers and their counsel, the practical move is to scrutinize the carrier’s no-show affidavits closely. Was the affiant actually present at the examinations? Does the affidavit explain how the affiant would know whether the assignor appeared? If the proof is records-based, is the business-record foundation actually laid, or merely gestured at? A defective foundation is a genuine litigation opportunity — but once the carrier’s showing is adequate, the provider must come forward with actual rebuttal evidence, not silence.

For carriers, the lesson is to engineer the proof in advance: ensure that IME facilities maintain contemporaneous no-show documentation and that affiants can speak either from genuine personal observation or through a complete business-record foundation, not a hybrid of the two that satisfies neither standard.

Key Takeaway

The case highlights the importance of proper evidence foundations in no-fault insurance litigation. Insurance companies must provide adequate documentation—not just personal testimony—to prove non-appearance at IMEs. Healthcare providers challenging such denials must understand the difference between personal knowledge testimony and business records to effectively rebut insurance company claims and protect their right to payment.

Related Resources

• IME no-shows in New York no-fault insurance cases
• No-Fault attorney
• IME excuse without personal knowledge
• Personal knowledge and other appropriate means
• The firm’s Legal Encyclopedia