IME No-Show Defense Defeated by an Affidavit Gap: Mailing Proof Must Cover Every Cause of Action

Key Takeaways

• In BR Clinton Chiropractic v New York Cent. Mut. (App. Term 2d Dept. 2012), the carrier’s IME no-show defense succeeded on four causes of action — and failed on the one its mailing affidavit did not address.
• Proof of mailing in no-fault litigation is claim-by-claim; an affidavit that skips a cause of action concedes it for summary judgment purposes.
• The provider’s cross motion on that orphaned claim failed too: a plaintiff cannot win summary judgment without showing the denial was untimely or facially meritless.

No-fault complaints rarely contain a single cause of action, and a carrier moving for summary judgment must prove its defense as to each one. BR Clinton Chiropractic shows what happens when the proof covers most — but not all — of the claims: the motion is granted in part, and the gap claim survives.

The Decision

BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 50880(U)(App. Term 2d Dept. 2012).

An affidavit executed by defendant’s litigation examiner demonstrated that denial of claim forms, which denied the claims at issue in the first, second, fourth and fifth causes of action based upon the failure of plaintiff’s assignor to appear for the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). However, the affidavit did not address the claim at issue in the third cause of action. As a result, defendant established its prima facie entitlement to judgment as a matter of law as to the first, second, fourth and fifth causes of action” (At this point, Defendant wishes he could rely on Unitrin)

“The branch of plaintiff’s cross motion seeking summary judgment on the third cause of action should have been denied as well, as plaintiff failed to demonstrate that defendant’s denial of claim form, which was attached to plaintiff’s cross motion, was not timely mailed to plaintiff, or that it was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 (a)“

The Legal Framework: Why One Affidavit Gap Sinks One Claim

The IME no-show defense rests on the appearance requirement in the mandatory personal injury protection endorsement (11 NYCRR 65-1.1): attendance at independent medical examinations is a condition precedent to coverage. To win summary judgment on the defense, the carrier must establish proper and timely mailing of the IME scheduling letters, the assignor’s failure to appear, and — critically here — timely mailing of a denial of claim form asserting the defense as to each claim sued upon.

Mailing is proven by an affidavit of actual mailing or by a sworn description of a standard office practice and procedure designed to ensure items are properly addressed and mailed. The litigation examiner’s affidavit in BR Clinton did that job for four of the five causes of action. The third cause of action simply was not addressed. Silence as to a claim is a failure of proof as to that claim, and the motion is denied to that extent.

The parenthetical about Unitrin in the original note is the defense lawyer’s lament: under the Unitrin line of authority discussed in our Nassau County analysis, an IME no-show voids the policy ab initio, and timeliness of the denial becomes far less important. But a carrier that cannot prove the denial’s mailing as to a claim — and does not otherwise establish the no-show defense for it — gets no help from that doctrine here.

The Cross Motion: Why the Provider Did Not Win the Orphaned Claim Either

The provider’s cross motion on the third cause of action failed for a mirror-image reason. Under Insurance Law § 5106(a), overdue no-fault benefits are payable — but a plaintiff moving for summary judgment where a denial exists in the record must show the denial was not timely mailed, or that it was conclusory, vague, or without merit as a matter of law. The denial form was attached to the plaintiff’s own cross motion, and the plaintiff made none of those showings.

The result is the familiar no-fault stalemate: neither side proved enough, so the gap claim goes to trial. See the firm’s hub on the formulation of a prima facie case.

Why This Matters for Carriers and Providers

For carriers, the case is a checklist warning. A litigation examiner’s affidavit should identify every claim, every denial, and every mailing date — an omitted claim is a lost branch of the motion, full stop.

For providers, the decision cuts both ways. An affidavit gap is the first thing to look for in opposing a no-show motion. But surviving the carrier’s motion is not winning your own: without proof of untimeliness or facial invalidity of the denial, summary judgment will be denied.

Practice Pointers

• Map the affidavit to the complaint. Before filing, confirm the mailing proof covers every cause of action by number, date of service, and amount.
• Oppose by subtraction. Providers should isolate the claims the carrier’s papers do not reach.
• Cross-movants must do more than point at gaps. To win under § 5106(a), show the denial was late, or conclusory and meritless on its face.
• Mind the mailing and proof of service fundamentals — most IME no-show defenses die on service proof.

Frequently Asked Questions

What must an insurer prove to win on an IME no-show defense in New York?

Proper and timely mailing of the IME scheduling letters, the assignor’s failure to appear at the duly scheduled examinations, and timely mailing of a denial asserting the defense — proven separately for each claim in the lawsuit.

What happens if the carrier’s affidavit skips one cause of action?

Summary judgment is denied as to that claim, even if the identical defense succeeds on every other claim, as occurred in BR Clinton Chiropractic. Courts do not extend proof from one claim to another by inference.

Why didn’t the medical provider win the claim the carrier failed to prove?

Because defeating the carrier’s motion and winning your own are different burdens. With a denial of claim form in the record, the provider had to show the denial was untimely mailed or conclusory, vague, or meritless as a matter of law — and showed neither.

Related Resources

• Understanding IME no-shows in New York no-fault insurance cases — the firm’s cluster hub
• The firm’s Legal Encyclopedia
• Our no-fault defense practice
• Nassau court’s application of Unitrin for IME no-show defenses
• Fourth Department’s discussion of what constitutes a prima facie case
• Carothers v. Geico business records requirements for prima facie cases
• Avoiding common mistakes in prima facie case requirements
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2012 decision, New York’s no-fault insurance regulations have undergone several amendments, particularly regarding IME scheduling procedures, denial notice requirements, and proof of mailing standards under Insurance Law § 5106. Practitioners should verify current provisions regarding affidavit requirements for establishing proper service of denial forms and any updated procedural safeguards for IME no-show defenses.