Key Takeaway
Five Boro Psychological Services defeats GEICO on procedural grounds when peer review reports lacked proper CPLR 2106 affidavit requirements in NY no-fault case.
Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co., 2012 NY Slip Op 51057(U)(App. Term 2d Dept. 2012)
He is a rambunctious soul. They say he is devoted to performing a never ending battery of Beck Inventory Tests and has a mobile Scantron reader because the patients need results. Instant gratification is how business is performed nowadays. His patients need physical therapy and are engaged with his form of therapy. The Appellate Term generally disfavors him, but he beat back Geico. Fear not, it was not on the merits. Mr. Five Boro took a page out of Mercury’s 2010 play book. He figured it worked then; why should it not work now?
“Plaintiff argues on appeal, as it did in the Civil Court, that the peer review reports defendant submitted in support of its cross motion for summary judgment were not in admissible form. We agree, as the peer review reports were affirmed by a psychologist, which is not permissible pursuant to CPLR 2106 (see Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145, 2012 NY Slip Op 50151 ; High Quality Med., P.C. v. Mercury Ins. Co., 29 Misc 3d 132, 2010 NY Slip Op 51900 ). We note that, although one of the peer review reports contained a notary public’s stamp and signature, it did not include an attestation that the psychologist had appeared before the notary public and been duly sworn”
I tip my hat to Mr. Five Boro on this one.
Related Articles
- When Insurance Defense Goes Wrong: Progressive’s Procedural Failures in Peer Review
- Peer hearsay and electronic signatures
- An affidavit really is not an affidavit
- The minimum that an affidavit must contain
- New York No-Fault Insurance Law
Legal Update (February 2026): Since this post’s publication in 2012, CPLR 2106 affidavit requirements and procedural rules governing peer review report admissibility in no-fault insurance disputes may have been modified through court rule amendments or regulatory updates. Practitioners should verify current provisions regarding proper affidavit form and attestation requirements for healthcare professional submissions in summary judgment proceedings.
