Why Trust This Analysis
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.
Understanding IME Defense Preservation in No-Fault Insurance Claims
In New York’s no-fault insurance system, insurance companies frequently rely on Independent Medical Examination (IME) no-show defenses to deny claims. However, an Appellate Term decision clarified an important procedural requirement that could significantly impact how insurers handle multiple claims from the same healthcare provider.
Key Takeaways
- In Valdan Acupuncture, P.C. v NY Central Mutual, three claims were denied on grounds other than the assignor’s IME no-shows.
- The Appellate Term held the carrier did not preserve its IME no-show defense as to those claims and could not win summary judgment on them on that ground.
- The decision sits on the Second Department side of the Unitrin/Westchester divide: the no-show defense must be asserted in the denial of each claim, not invoked globally after the fact.
- Carriers handling multiple bills from one provider must keep their denial grounds consistent claim by claim.
The case of Valdan Acupuncture, P.C. v NY Central Mutual Fire Insurance Co. addresses a critical question: when an insurance company denies some claims on grounds other than IME no-shows, can it still use the IME no-show defense for other claims from the same provider? This decision builds upon established precedent regarding IME procedural requirements and provides important guidance for both insurers and healthcare providers in the no-fault system.
The Decision
Jason Tenenbaum’s Analysis:
Valdan Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 2018 NY Slip Op 50739(U)(App. Term 2d Dept. 2018)
Oh its’s real. “Three of the claims at issue in this case, seeking the sums of $1,062.11, $1,420.16 and $1,420.16, respectively, were denied on grounds other than plaintiff’s assignor’s failure to appear for IMEs. Consequently, as plaintiff argues, defendant did not preserve its IME no-show defense as to those claims and, thus, it is not entitled to summary judgment dismissing those claims on that ground ”
Shout out to former no-fault attorney Irena Golodkeyer on her brief. Rumor tells me that she has found greener pastures in the world.
The Legal Framework: What the Split Is About
The title of this post references the two competing approaches to IME no-show defenses in New York no-fault litigation. Under the First Department’s Unitrin line of cases, an assignor’s failure to appear for properly scheduled IMEs is treated as the breach of a condition precedent to coverage that vitiates the policy — an approach that, taken to its logical end, lets the carrier reach back and deny everything once the no-shows occur, regardless of what any individual denial said.
The competing approach, reflected in Second Department-side authority, treats the no-show defense like any other precludable defense under the no-fault regulation’s 30-day pay-or-deny framework (11 NYCRR 65-3.8): if the carrier wants the defense, the denial of claim form for that bill has to assert it. A carrier that denies a bill on, say, fee schedule or medical necessity grounds has committed to those grounds for that bill.
Valdan is a clean application of the second approach. Three claims were denied on grounds other than the IME no-shows. When the carrier later moved for summary judgment on the no-show defense across the board, the Appellate Term held the defense unpreserved as to those three claims. The assignor’s failure to attend the IMEs did not matter for bills whose denials never said so.
Why This Matters for Carriers and Providers
For carriers, the operational lesson is about denial discipline. No-fault files involving a single assignor routinely contain a dozen or more bills from the same provider, denied on different dates by different examiners. If the IME no-shows have matured into a defense, that defense needs to appear on every subsequent denial the carrier wants it to cover. A claims operation that lets some denials go out on other grounds has, under Valdan, carved those bills out of its no-show defense.
For providers, the decision is a roadmap for opposing global no-show motions. Match every claim at issue against its denial form. Any bill denied solely on other grounds is outside the carrier’s no-show defense, and partial summary judgment for the carrier is the most it should get. In Valdan, that exercise saved three claims worth nearly $4,000.
The decision also matters for how the two appellate departments’ approaches coexist. Forum — and which department’s law governs — can determine whether an IME no-show operates as a policy-level defense or a claim-by-claim one. Practitioners litigating IME no-show cases need to know which side of the split their court sits on before briefing the motion.
Practice Pointers
- Carriers: audit denial forms in multi-bill files. Once IME no-shows occur, assert the defense on every denial intended to rely on it; do not assume a later motion can sweep in bills denied on other grounds.
- Carriers: remember the no-show proof itself — scheduling letters, mailing proof, and non-appearance affidavits — remains a separate prerequisite even where the defense is preserved.
- Providers: in opposition, build a claim-by-claim chart of denial grounds. Valdan makes the mismatch itself a winning argument.
- Both sides: check which department’s law applies. The Unitrin/Westchester split means the same facts can produce different outcomes across the river.
Frequently Asked Questions
What is the Unitrin/Westchester split in New York no-fault law?
It is the divide between the First Department’s Unitrin approach — treating IME no-shows as a breach of a condition precedent that vitiates coverage — and the claim-by-claim approach applied in Valdan, under which the no-show defense must be asserted in the timely denial of each claim it is meant to defeat.
Can an insurer deny all of a provider’s claims after an IME no-show?
Not automatically in the Second Department’s Appellate Term. Under Valdan, claims that were denied on grounds other than the IME no-shows are outside the no-show defense, and the carrier cannot obtain summary judgment on those claims on that ground.
What should a provider check when opposing an IME no-show motion?
The denial of claim form for every bill at issue. If a denial asserted only other grounds — fee schedule, medical necessity, lack of verification — the no-show defense was not preserved for that bill, no matter how solid the carrier’s proof of non-appearance is.
Related Resources
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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Oct 30, 2015Frequently 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.
What is the Unitrin/Westchester split in New York no-fault law?
It is the divide between the First Department's *Unitrin* approach — treating IME no-shows as a breach of a condition precedent that vitiates coverage — and the claim-by-claim approach applied in *Valdan*, under which the no-show defense must be asserted in the timely denial of each claim it is meant to defeat.
Can an insurer deny all of a provider's claims after an IME no-show?
Not automatically in the Second Department's Appellate Term. Under *Valdan*, claims that were denied on grounds other than the IME no-shows are outside the no-show defense, and the carrier cannot obtain summary judgment on those claims on that ground.
What should a provider check when opposing an IME no-show motion?
The denial of claim form for every bill at issue. If a denial asserted only other grounds — fee schedule, medical necessity, lack of verification — the no-show defense was not preserved for that bill, no matter how solid the carrier's proof of non-appearance is.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
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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