IME No-Show Proof: Why Vendor Letters Are Hearsay in New York No-Fault Cases

Key Takeaways

• The Appellate Term, Second Department, held that letters from an IME scheduling vendor (SIGNET) stating that a claimant failed to appear are hearsay and do not prove the no-show.
• A carrier asserting an IME no-show defense must prove the non-appearance itself — a fact that must be established by someone with personal knowledge, not by relaying what the examining doctor “informed” the vendor.
• The “not offered for its truth” argument fails because the carrier needs the statement to be true: the defense rises or falls on whether the assignor actually missed the exams.
• Since Stephen Fogel Psychological, attendance at a duly scheduled IME is a condition precedent to coverage — which is precisely why the proof of non-appearance must be competent and admissible.

Quality Psychological Servs., P.C. v Travelers Home & Mar. Ins. Co, 2013 NY Slip Op 50750(U)(App. Term 2d Dept. 2013), is a short decision with a clear lesson for no-fault carriers: you cannot prove an independent medical examination (IME) no-show through the scheduling vendor’s paperwork alone.

The Decision

The carrier, Travelers, used a third-party vendor — SIGNET — to schedule the IMEs of the plaintiff’s assignor. When the assignor allegedly failed to appear, Travelers tried to establish the no-shows through an affidavit describing what SIGNET had been told, plus the vendor’s own follow-up letters. The Appellate Term was not persuaded:

“The affidavit further states that, in this case, after each of the dates on which an IME was scheduled, the assigned healthcare professional “informed” SIGNET that plaintiff’s assignor had not appeared. Defendant also attached letters from SIGNET to defendant stating that plaintiff’s assignor had failed to appear for scheduled IMEs. In its brief, defendant argues, in effect, that it had been “notified” that plaintiff’s assignor had failed to appear for IMEs and that the letters from SIGNET are not hearsay because the “statement” of the healthcare professional was being proffered in this case only to prove that the statement was made, not for its truth. However, in order to raise a triable issue of fact, defendant must demonstrate that plaintiff’s assignor actually failed to comply with a condition precedent to coverage by failing to appear for duly scheduled IMEs, and defendant failed to do so.”

It was a novel attempt to prove a no-show through the vendor. Pre-Fogel, it would have worked. But for the last 7 years, this is not necessarily the way to go about making your case. The court was correct on this one.

The Legal Framework: Fogel and the Condition Precedent

Under the mandatory personal injury protection endorsement (11 NYCRR 65-1.1), an eligible injured person must appear for medical examinations “when, and as often as, the Company may reasonably require.” Since Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., appearance at a duly scheduled IME has been treated as a condition precedent to coverage — a no-show vitiates the policy and permits retroactive denial of all claims.

That powerful remedy comes with a corresponding evidentiary burden. The carrier must establish two facts with admissible proof: (1) that the IME notices were properly mailed, and (2) that the assignor actually failed to appear on the scheduled dates. The first element is usually proven through an affidavit describing a standard office practice of mailing. The second is where carriers stumble: non-appearance is a fact within the personal knowledge of whoever was in the examining office that day — typically the doctor prepared to perform the examination — and an affidavit from that professional is the accepted route.

Why the Vendor-Letter Theory Failed

Travelers’ argument was creative: the SIGNET letters were not hearsay, the carrier said, because they were offered only to prove the statements were made — that the carrier was “notified” of the no-shows — not for their truth.

The problem is that notice was never the issue. The fact the carrier had to prove was the non-appearance itself. A vendor letter reciting what an examining doctor “informed” the vendor is an out-of-court statement offered to prove exactly what it asserts — that the assignor did not show up. Strip out the inadmissible layers and the carrier had no competent proof of the dispositive fact, and therefore no triable issue.

Why This Matters for Carriers, Providers, and Counsel

For carriers and defense counsel, the case is a reminder that outsourcing IME scheduling does not outsource the evidentiary burden. The vendor’s file documents the process, but it does not substitute for a witness with personal knowledge of the non-appearance.

For medical providers and their collection counsel, the decision is a roadmap for opposing IME no-show motions: scrutinize who actually says the assignor failed to appear. If the only source is a vendor letter or an affidavit reciting what someone else reported, the hearsay objection in Quality Psychological applies with full force.

The same logic carries over to EUO no-show defenses, where courts accept statements from the attorney assigned to conduct the examination — again, personal knowledge.

Practice Pointers

• Identify the personal-knowledge witness early. The examining doctor is the witness who can prove the no-show; lock in that affidavit before suit is filed, while memory and records are fresh.
• Do not rely on vendor correspondence as substantive proof. Scheduling letters establish mailing and due scheduling; they do not establish non-appearance.
• Plaintiffs: attack the foundation. Parse each affidavit for the source of the affiant’s knowledge — “I was informed” is a concession, not a foundation.
• Track the quantum-of-proof cases refining how much detail the no-show affidavit needs.

Frequently Asked Questions

What does an insurance company have to prove for an IME no-show defense in New York?

The carrier must show the IME requests were properly mailed and that the person actually failed to appear — established by someone with personal knowledge, typically the doctor scheduled to perform the examination, not by secondhand reports.

Why were the vendor’s letters considered hearsay?

The letters recited what the examining professional “informed” the vendor — an out-of-court statement offered to prove the very fact in dispute, the no-show. Because the carrier needed the statement to be true to win, the “offered only to show notice” argument failed.

Does missing an IME really void no-fault coverage?

Under Stephen Fogel Psychological and its progeny, failing to appear for duly scheduled IMEs breaches a condition precedent to coverage and permits retroactive denial. That is why courts insist the proof of non-appearance be competent and admissible.

Related Resources

• Understanding IME No-Shows in New York No-Fault Insurance Cases — the firm’s cluster hub on IME no-show law
• IME No-Show – Personal Knowledge
• IME no-show with statement regarding quantum of proof regarding the “no-show”
• Alrof v. Safeco – its first application
• An attorney’s statement regarding “he did not show up” is sufficient to support EUO defense
• New York No-Fault Insurance Law
• Browse the firm’s Legal Encyclopedia for more on no-fault evidence issues
• No-Fault Defense practice page

Legal Update (February 2026): Since this 2013 post, New York’s no-fault insurance regulations and IME scheduling procedures may have undergone revisions, particularly regarding documentation requirements for non-appearances and vendor reporting protocols. Additionally, appellate decisions subsequent to Quality Psychological Services may have further refined the evidentiary standards for establishing IME non-compliance. Practitioners should verify current regulatory provisions and recent case law when addressing IME no-show issues.