How did you know that you never received the requested verification?

An insurer can prove that it sent verification requests and still fail to prove that the requested information remained missing. That was the problem in Eagle Surgical’s August 2010 appeal. The court denied the insurer’s dismissal motion; it did not award the provider payment.

Historical note (September 2026): Eagle Surgical, 2010 NY Slip Op 51456(U), concerns a missing evidentiary foundation. The current verification hub distinguishes that issue from the later 120-day response and Chapa denial-timing rules.

Last reviewed: September 2026.

What the insurer proved, and what it did not

Eagle Surgical Supply v Travelers Indemnity, 28 Misc 3d 137(A), decided August 12, 2010, arose from an insurer’s motion to dismiss a provider’s assigned-benefits action for outstanding verification. The insurer established timely requests. Its litigation examiner, however, did not even allege that the requested verification remained outstanding.

The attorney’s assertion of nonreceipt did not fill the gap because the attorney had not demonstrated personal knowledge. The Appellate Term reversed the order granting dismissal and denied the motion.

Justice Golia’s concurrence underscored the contrast: extensive mailing evidence had been supplied, but the record lacked a knowledgeable account that the requests remained unsatisfied. This was a failure of proof, not a finding that the insurer actually received every document.

Jason Tenenbaum’s 2010 commentary

These questions and observations are preserved as contemporary commentary, not attributed to the court.

By the way: you saw this before- A.B. Medical Services, PLLC v. Country-Wide Ins. Co., 23 Misc.3d 140(A)(App. Term 2d Dept. 2009):

Since the affidavit of defendant’s no-fault litigation supervisor lacks specificity to support the assertion that defendant did not receive the verification it requested, it was insufficient to establish that the verification was still outstanding and, thus, defendant’s time to pay or deny the claims was not tolled.

Jason’s cited comparison can be checked in A.B. Medical Services v Country-Wide, 23 Misc 3d 140(A) (2009). Its nonreceipt discussion found the supervisor’s affidavit insufficiently specific and awarded judgment on the affected claims. That outcome depended on its own record; Eagle Surgical itself only denied the insurer’s motion.

The witness needs a basis for the particular assertion

A person who understands outgoing-mail procedures may explain how a request was generated and sent. That knowledge does not necessarily establish what later arrived, how incoming material was filed, or whether anyone checked the response.

For a practical file review, separate those assertions. Which witness explains the request mailing? Which witness explains the incoming-document system or relevant search? What requested items does the witness say were still missing? The answers may come from one person or several, depending on their knowledge.

The decision does not prescribe a job title or demand testimony from the person who opened every envelope. Its concern is the evidentiary basis for the statement actually being made. An attorney’s characterization of a claims file does not itself establish the underlying facts.

Compare the other Eagle Surgical appeal

The archive also contains Eagle Surgical’s October 2010 decision, 2010 NY Slip Op 51775(U). It is a different appeal, not a later stage of this same case. There, the provider attached responses, but the record demonstrated that requested verification remained incomplete. The court affirmed premature dismissal.

Reading the two decisions together avoids a misleading conclusion from either headline. August shows that request-mailing proof alone was insufficient. October shows that the existence of some response did not itself establish completion. The evidence had to address both the insurer’s request and the provider’s response.

The distinction is also visible in Daily Medical, where the provider failed to show a pre-suit submission, and New Way, where mailing evidence supported a presumption of receipt and created a factual dispute. “Nonreceipt” describes the issue, not a predetermined result.

What a current verification review should preserve

Keep the actual requests, the follow-up record, the response packet and the evidence of transmission or receipt. A request list can identify which materials are said to remain outstanding. A response index can show where an item was supplied or where a written explanation was given instead.

This organization is a practical aid, not a new court-imposed form. It makes the factual dispute visible and reduces the temptation to rely on a generic statement that “verification remains open.”

For applicable document requests, § 65-3.5(o) recognizes both materials in the applicant’s possession or control and written proof giving reasonable justification for noncompliance. That later regulatory framework should not be retroactively attributed to this 2010 opinion. The review date and the treatment dates matter.

The motion needs an answer to the question in this note’s title: how does the witness know the response never arrived?

Connect to the Encyclopedia

Start with the no-fault verification hub and 2026 Chapa update for the governing framework and case directory. Related case notes:

• Daily Medical: failure to show verification was supplied before suit.
• Ambrister: an explained second-notice exhibit.
• New Way: mailing evidence and two different claim results.
• Eagle Surgical in October 2010: an attached but incomplete response.
• Compas: document requests separated from missed examinations.
• Doctor Goldshteyn: partial production and the objection question.

For review of a particular no-fault verification dispute, request a Free Case Review. Keep the requests, responses and relevant claim dates available for that review.