In Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 7 Misc 3d 18, 20, 793 N.Y.S.2d 661 (App. Term, 2d Dept. 2004) aff'd 35 AD3d 720, 827 N.Y.S.2d 217 (2d Dept. 2006), the Appellate Term found that an insurer had the right to conduct an IME prior to its "receipt of the statutory claim form or its statutory equivalent which "under the regulations, trigger the verification process."

The right to an IME, at this juncture was not afforded by the verification procedures, as the "detailed and narrowly construed verification protocols are not amenable to application at a stage prior to submission of a claim form." (Id at 21.)

The court then noted the "Conditions" section in the Mandatory PIP predicates the right to commence an action against the insurer upon an eligible injured person's ("assignor") compliance with the terms of coverage. Fogel, supra, 7 Misc 3d at 25 (Golia, J., conc. in part and diss. in part).

"Where an eligible injured person fails to submit to a reasonably requested IME, the insurance policy, by its terms...affords no coverage for the otherwise eligible injured person." 7 Misc 3d at 25 citing to Orr. v. Continental Cas. Co., 205 AD2d 599, 613 N.Y.S.2d 234 (2d Dept. 1994) (Under New York law, the insurer has the right to declare the contract at the end where the insured breaches a term upon which the contract was conditioned).

Thus, an insured's refusal to comply with a reasonably requested IME which was not opposed or adequately refuted, constitutes a complete defense to the claim warranting dismissal. (7 Misc 3d at 25.)