Key Takeaway
Eagle Surgical: defective chiropractor peer reviews, timely mailing proof, and why denial of the insurer's motion did not establish a payment award.
This article is part of our ongoing affidavits coverage, with 201 published articles analyzing affidavits 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.
Last reviewed: September 2026.
Legal Update (September 2026): The expansion effective January 1, 2024 removed CPLR 2106’s former signer restrictions; the 2025 amendment revised the form and specified covered documents and exceptions.
The insurer proved timely mailing but still lost its motion in Eagle Surgical Supply v Progressive, 34 Misc 3d 145(A) (2012). Its chiropractor’s peer-review reports were not in admissible form under the rules then in force.
What the insurer proved, and what it did not
The Appellate Term accepted the proof that the denial forms had been timely mailed. The provider objected to two affirmed chiropractor reports because chiropractors did not qualify to affirm under the former CPLR 2106. One report also bore a notary’s stamp and signature without an attestation that the reviewer had been sworn or appeared before the notary.
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The court affirmed denial of the insurer’s summary judgment motion. It added that the provider’s osteopath affidavit would raise a triable issue of medical necessity even if the insurer’s reports were in proper form. The decision therefore does not establish a provider payment award or a failed mailing defense.
Read the old signer restriction against today’s rule
Current CPLR 2106 allows any person to use a subscribed affirmation under New York’s penalties of perjury for covered statements. A chiropractor is no longer excluded simply by profession. A compliant affirmation does not resolve the medical dispute or make every attached record admissible. CPLR 2309(b) remains relevant when an administered oath is used.
Jason’s original comment
Jason’s original 2012 reaction follows. The reference to an appeal expense is his historical hypothetical, not a current cost estimate; the opinion affirmed denial of the insurer’s motion.
Progressive wins the Mr. Five Boro award today
If it could go wrong it did. There was probably no point of appealing this one. Ask yourself this question: If you had to pay $1,500 to create a reproduced record, would you spend your client’s money on these facts? The answer is probably obvious.
Frequently Asked Questions
What happens when an insurance company’s peer review report has procedural defects?
The consequence depends on the motion record. Eagle Surgical’s chiropractor reports did not support the insurer’s motion in their submitted form; denial of that motion was affirmed. The court did not award the provider payment.
Can medical providers challenge peer review reports on technical grounds?
Yes. Eagle Surgical records a timely objection to the reports’ form. Today, counsel must distinguish an administered oath from a compliant CPLR 2106 affirmation rather than demand notarization in every case.
Is it worth appealing when insurance companies make obvious procedural errors?
That requires review of the order, preserved arguments and likely benefit. Jason’s historical comment questions this appeal; it is not a general rule against appealing a procedural ruling.
How can medical providers strengthen their position against peer review challenges?
Preserve the claim and denial records and identify the medical issue actually disputed. In Eagle Surgical, the opposing osteopath’s affidavit would raise a medical-necessity issue even if the insurer’s reports had been in proper form.
What role do notarization requirements play in peer review cases?
The 2012 ruling applied former signer restrictions. Current CPLR 2106 permits any person to use its affirmation procedure for covered statements. If an affidavit is used instead, its oath and execution still matter.
Connect to the Encyclopedia
Start with the CPLR 2106 affirmations and affidavits hub for the current procedure and its historical cases.
- Quality Psychological: former signer restrictions and two failed motions
- New Millennium: oath defects beyond mere form
- New Way: apparent notarization before signing
- Clarke: conformity and notarial attestation are separate defects
For review of a particular document or motion record, contact the firm. This note is general information, not an assessment of a pending case.
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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Nov 18, 2013Frequently Asked Questions
Common Questions About This Topic
5 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
What happens when an insurance company’s peer review report has procedural defects?
The consequence depends on the motion record. Eagle Surgical's chiropractor reports did not support the insurer's motion in their submitted form; denial of that motion was affirmed. The court did not award the provider payment.
Can medical providers challenge peer review reports on technical grounds?
Yes. Eagle Surgical records a timely objection to the reports' form. Today, counsel must distinguish an administered oath from a compliant CPLR 2106 affirmation rather than demand notarization in every case.
Is it worth appealing when insurance companies make obvious procedural errors?
That requires review of the order, preserved arguments and likely benefit. Jason's historical comment questions this appeal; it is not a general rule against appealing a procedural ruling.
How can medical providers strengthen their position against peer review challenges?
Preserve the claim and denial records and identify the medical issue actually disputed. In Eagle Surgical, the opposing osteopath's affidavit would raise a medical-necessity issue even if the insurer's reports had been in proper form.
What role do notarization requirements play in peer review cases?
The 2012 ruling applied former signer restrictions. Current CPLR 2106 permits any person to use its affirmation procedure for covered statements. If an affidavit is used instead, its oath and execution still matter.
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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.
If you need legal help with a affidavits matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
