"I think Unitrin was wrongly decided"

The headline preserves the disagreement expressed in a concurrence, not an overruling of Unitrin. In American Transit v Acosta, the First Department denied the insurer summary judgment because the record did not establish the required examination-request timing. The majority still applied Unitrin. The insurer’s name is American Transit, not American Trust.

Historical note — Last reviewed: September 2026. The February 2022 majority denied relief for deficient timing proof, while a concurrence criticized Unitrin; the later Gaines decision (2025) continued to apply the First Department’s no-show framework, with the distinction preserved in the IME directory.

The majority’s ruling was narrower than the headline debate

American Transit Insurance Co. v Acosta, 202 AD3d 567, was decided February 17, 2022. The First Department reversed the grant of summary judgment to American Transit against the three provider appellants and denied the motion.

The majority said the insurer had to establish that it requested the examinations within the relevant procedures and time frames, as well as nonappearance. It was impossible to discern compliance from the submitted record. The opinion cited the request and scheduling provisions in 11 NYCRR 65-3.5(b) and (d).

That result did not decide that the examinations had necessarily occurred too late. It held that the insurer had not established its entitlement to judgment from the record before the court. It also did not grant the providers a final money judgment.

What the concurrence disagreed with

Justice Manzanet-Daniels concurred in the result while favoring the reasoning of other departments that treats nonappearance as breach of a policy term rather than lack of coverage in the first instance. She expressly acknowledged the First Department precedent that constrained her.

That is a disagreement over the preclusion consequences of the defense. It should not be rewritten as a rule that other departments merely limit damages for one bill or protect every other provider automatically. Nor should it be described as a majority holding that Unitrin was wrongly decided.

The distinction between a majority and a concurrence is part of this note’s historical value. The majority supplies the court’s decision. Criticism of a First Department rule should also be distinguished from another department’s controlling holding. The relevant court and procedural setting determine which opinion supports an argument; the fact that the concurrence agreed with the result does not turn its alternative reasoning into the majority’s rule. The concurrence records a judicial criticism that can be read and evaluated without representing that the criticism became the governing rule.

Jason’s original reaction

Jason wrote the following in February 2022 before reproducing the majority’s timing discussion:

When carriers continuously throw garbage into the system and fail to oppose an appeal, this is the outcome. The majority opinion said

The paragraph is preserved as his dated criticism. The published opinion establishes the deficiency in the motion record; it does not independently document every aspect of the insurer’s appellate participation or adopt Jason’s characterization.

After the quoted timing passage, he added:

Well, well, well…

Those comments belong to the historical post. The refreshed explanation does not add a new first-person account or a prediction that a future court will abandon the rule.

The cited Fourth Department case was an EUO case

The concurrence cited Nationwide Affinity v Jamaica Wellness Medical, 167 AD3d 192 (4th Dept 2018). That decision concerned failure to attend examinations under oath. The court held that the defense was subject to preclusion and that the insurer had not established timely denials.

It is useful authority for understanding the concurrence’s reasoning, but its examination type should not disappear from the summary. An EUO is not a medical examination. Describing the case accurately leaves room to examine how its reasoning may bear on an IME dispute without pretending the facts were identical.

The later 2020 appeal in Jamaica Wellness is also important to the history. The insurers then obtained judgment after establishing the timely-denial showing. The earlier appeal’s procedural loss did not mean that a no-show defense could never succeed in that department.

The 2020 opinion identifies what changed in the submissions: a detailed claims-specialist affidavit, the denial forms and affidavits from the third-party processor’s operations manager. The Fourth Department also explained why it entertained another summary-judgment motion. Its intervening 2018 decision had clarified the timely-denial requirement and supplied sufficient cause in that procedural setting.

That does not establish an unrestricted right to repair a deficient motion through repeated applications. The later court assessed both whether the motion should be considered and whether the new showing established the requested relief. These are separate parts of the procedural history, just as the majority and concurrence are separate parts of Acosta.

The provider’s request for further discovery did not prevent the 2020 result. The court found its hope that discovery would uncover enough evidence insufficient. CPLR 3212(f) nevertheless permits relief when essential opposing facts may exist but cannot yet be stated. The distinction is between a supported explanation of missing material facts and speculation that something helpful might turn up. Neither the 2018 loss nor the 2020 success can be understood solely from the word “preclusion.”

Read together, the two appeals show why “policy exclusion rather than no coverage” is not shorthand for “the provider gets paid.” The proof and timeliness questions still determine the available relief. A selective account that mentions only the 2018 reversal misses the later outcome.

Do not turn the timing language into one universal clock

Acosta concerned whether the record established compliance with the applicable request and scheduling provisions. For an actual calculation, identify the form or claim received, its receipt date, the request date and the examination date. The text and context of the relevant regulation matter; a short quotation from an appellate opinion is not a replacement for them.

The key contrast is Nationwide General v Gaines (2025), where the First Department addressed notices sent before claims arrived. That different chronology led the court to reject the proposed post-claim timing objection. Gaines also cited Lucas and did not require proof of a timely disclaimer for the no-show defense it found established.

That is a later application of the framework, not proof that Acosta was an outlier to be ignored. Acosta identifies what was missing from one record. Gaines identifies why a particular timing requirement did not apply to another. Both belong in a usable research trail.

Compare notice validity with the consequence of a valid no-show

A coverage rule answers what may follow once a properly established no-show exists. It does not independently establish the underlying demand or absence.

Center for Orthopedic Surgery examines a reasonableness objection and a representation issue. Longevity v Citiwide follows a sequence of pre-claim IME notices, post-claim written verification and denial. Solorzano separates competent IME evidence from the distinct requirements for default relief.

Those connected notes make it easier to identify a precise issue instead of attaching the Unitrin label to every question. Is the dispute about the notice, the timing, the witness, the denial, or the form of relief? The answer directs the reader to the relevant branch of the archive.

What this note can support in current research

Use Acosta for its published majority ruling and its separately attributed concurrence. Check the current controlling authority in the relevant court before relying on either formulation in a new matter. This note does not claim a complete citator search or that every later appellate panel has agreed with every part of the reasoning.

If the point is the insurer’s prima facie proof, cite the majority’s actual deficiency. If the point is criticism of the no-coverage theory, identify the concurrence as such. If the question is whether the defense can succeed with a timely denial in another department, include the later Jamaica Wellness outcome.

That disciplined reading preserves the debate without converting an old headline into a current universal rule.

Connect to the Encyclopedia

The IME no-show case directory connects notice, attendance, timing and procedural decisions:

• Lucas: physician and employee evidence in the First Department
• Center for Orthopedic Surgery: reasonableness and proof of representation
• Longevity v Citiwide: IMEs, written verification and denial timing
• Solorzano: summary judgment and default relief were different requests
• Quality Psychological and Arco: proof subjects, not an affidavit headcount

For review of a particular no-fault claim or motion record, contact the Law Office of Jason Tenenbaum, P.C. and read about our no-fault defense practice.