Key Takeaway
Five Boro defeated GEICO's motion under the former psychologist-affirmation rule. The 2024 change and the separate oath-attestation issue explained.
This article is part of our ongoing affidavits coverage, with 196 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 the former professional restriction at issue here; see the current affirmation guide for current CPLR 2106 form and exceptions.
Five Boro Psychological Services v GEICO, 35 Misc 3d 146(A) (App Term 2012) resulted in denial of the insurer’s cross-motion. The court did not resolve medical necessity. GEICO established timely mailing of its denial forms. Its peer-review reports nevertheless failed to supply admissible proof under the rules then in force.
The two defects in the reports
The reports were affirmed by a psychologist, who could not use the domestic professional affirmation procedure then available under CPLR 2106. One report also bore a notary’s stamp and signature but lacked an attestation that the psychologist appeared and was sworn. The court found that report insufficient under CPLR 2309(b).
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The insurer therefore failed to make the showing needed to shift the burden to the provider. The appellate court reversed the grant of GEICO’s cross-motion and denied it. It did not determine that the treatment was medically necessary or award the provider payment.
The professional restriction has changed
Current CPLR 2106 permits any person to use a subscribed perjury affirmation for covered statements. A psychologist is no longer excluded merely by profession. The rule’s exceptions remain, and signature form still does not establish the medical opinion’s factual basis.
For a motion relying on older reports, examine the actual signed papers and applicable procedure. The 2024 expansion covered pending actions as well as later ones; the original report’s date alone does not decide which rule governs its current use.
Jason’s original comment
Jason’s original 2012 commentary follows. Its descriptions of a testing practice and the court’s attitude are commentary, not factual findings in the cited opinion; they have not been independently verified here. The court denied GEICO’s cross-motion without awarding the provider benefits.
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?
I tip my hat to Mr. Five Boro on this one.
Frequently Asked Questions
Can a psychologist affirm a peer review report in New York?
For a covered statement, current CPLR 2106 permits any person to use a subscribed perjury affirmation. Five Boro applied the earlier professional restriction. Proper form does not by itself establish medical expertise or necessity.
What happens if a peer review report is not in admissible form?
In Five Boro, the defective reports left GEICO without the showing needed for its cross-motion. The court denied that motion; it did not award the provider benefits or determine medical necessity.
What must a jurat say for a document to count as an affidavit?
The jurat records that an oath was administered. Five Boro found a stamp and signature insufficient without an attestation that the psychologist appeared and was sworn; Furtow illustrates a form the court accepted.
Connect to the Encyclopedia
- CPLR 2106: current affirmation rules and historical affidavit cases
- Furtow: an adequate sworn recital and jurat
- Ramirez: an electronically signed affirmed report
- Lopez: signer form and expert qualifications
- Simanovskiy: personal knowledge supporting medical tests
For review of a particular motion, keep the signed reports, supporting records, objections and court orders together and contact the firm. This historical note is general information, not an assessment of an individual 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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Jun 5, 2012Frequently Asked Questions
Common Questions About This Topic
3 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
Can a psychologist affirm a peer review report in New York?
For a covered statement, current CPLR 2106 permits any person to use a subscribed perjury affirmation. Five Boro applied the earlier professional restriction. Proper form does not by itself establish medical expertise or necessity.
What happens if a peer review report is not in admissible form?
In Five Boro, the defective reports left GEICO without the showing needed for its cross-motion. The court denied that motion; it did not award the provider benefits or determine medical necessity.
What must a jurat say for a document to count as an affidavit?
The jurat records that an oath was administered. Five Boro found a stamp and signature insufficient without an attestation that the psychologist appeared and was sworn; Furtow illustrates a form the court accepted.
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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.
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