MB Advanced Equip., Inc. v New York Cent. Mut. Fire Ins. Co., 2016 NY Slip Op 50863(U) http://www.nycourts.gov/reporter/3dseries/2016/2016_50863.htm
The IME doctors swore they were in a different location, other than the location of the alleged no show. The Court said:
In support of its motion, defendant submitted affidavits from the doctor and chiropractor who were to perform the IMEs, which affidavits were sufficient to establish that plaintiff’s assignors had failed to appear for duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). However, in opposition, plaintiff submitted affidavits in which the doctor and chiropractor had previously sworn, under penalty of perjury, that when the IMEs were scheduled to occur, they were at a location other than the address set forth in the IME scheduling letters. To the extent defendant’s counsel asserted in a reply affirmation that the discrepancy was due to typographical errors in the prior affidavits, counsel did not demonstrate that she possessed personal knowledge sufficient to establish, as a matter of law, that the doctor and chiropractor were at the correct location when the IMEs were to be held.
Sound like the insurer should have settled this case.