Amended motion/Admissible Reply papers/Defects in affidavits/delay letter vs. verification requests

Last reviewed: September 2026.

Historical note: This 2013 decision separates a correctable motion-paper defect from missing proof of an IME defense or a verification request. Read the 2026 verification discussion for the later denial-timing issue; it does not turn a general investigation letter into a request for information.

An amended affidavit can be considered without winning the motion. In Colonia Medical v New York Central Mutual, decided July 12, 2013, the Appellate Term allowed a technical correction but found separate problems with the insurer’s proof. It also removed the lower court’s finding that the provider had established its own prima facie case.

Four questions, four separate answers

The insurer sought summary judgment on claims assigned by one patient. It relied on missed independent medical examinations and, for two claims, outstanding documentary verification. The provider challenged an incomplete, unsigned IME-doctor affidavit and cross-moved for payment.

The insurer then supplied a complete affidavit in papers labeled an amended motion. The Civil Court treated those papers as a reply. The Appellate Term accepted that treatment because the substance had not changed and the provider had responded to the corrected submission. That procedural ruling only put the paper before the court. It did not establish that its contents proved nonappearance.

The doctor’s account contained an address discrepancy concerning the scheduled examination. Separately, the insurer’s letters said it was delaying consideration while investigating the accident; they did not establish a qualifying verification request. Those were different failures of proof, not two descriptions of the unsigned-affidavit problem.

Correction under CPLR 2001 is not a substitute for evidence

CPLR 2001 addresses mistakes, omissions, defects and irregularities, with attention to just terms and prejudice to substantial rights. Colonia applied it to an unchanged submission with a corrected technical defect and an opportunity for the opponent to respond.

The opinion does not authorize a new theory or an entirely missing factual case to be introduced on reply. Nor does it say every unsigned affidavit must be accepted. When using this decision, identify exactly what changed between the original and corrected papers and whether the opposing party had a chance to address it.

The IME address problem then requires its own examination. Correct execution of an affidavit cannot reconcile inconsistent accounts of where the examination was scheduled. The appellate court found the insurer had not carried its burden; it did not decide that the patient actually attended.

Why an investigation letter did not stop the clock

A letter announcing that an investigation is continuing tells the recipient why the insurer has not acted. A verification request identifies information being sought. Colonia found the insurer’s letters fell in the first category, so they did not establish the claimed toll.

For the present regulatory framework, 11 NYCRR 65-3.5 and 65-3.8 distinguish additional verification from the obligation to pay or deny a completed claim. Before calculating elapsed time, read the correspondence itself. A file label such as “delay” or “verification” is not a substitute for its contents.

The provider did not win by identifying those defects

The Appellate Term left the denial of the insurer’s summary-judgment motion in place, but struck the finding that the provider had established its prima facie case. The two parties’ burdens had to be assessed separately.

The opinion cites CPLR 4518, the business-records rule. Its regular-course and timing requirements concern admissibility; pointing to an insurer’s defective affidavit does not establish the foundation for the provider’s records. The case therefore should not be summarized as an automatic payment award whenever a delay letter fails.

Jason’s original August 2013 note

The following commentary is preserved from the original post. The fuller explanation above distinguishes the technical defect, the address discrepancy and the separate business-records issue.

This case starts with some procedural history.  It then states that IME affidavits are not probative based upon inconsistencies and then it ends with a statement that a “delay letter” is insufficient to toll the period to pay or deny a claim.   Finally, the affidavit was insufficient to establish a business record foundation (CPLR 4518)

Reading Colonia beside later verification cases

The useful comparison is between a missing request, a disputed mailing and an incomplete response. Each raises a different question before the insurer’s payment deadline can be calculated. The later Chapa decision concerns denial timing after a request and an issued denial; it does not supply the request that was missing from Colonia’s proof.

For a file involving several bills, match each asserted defense to the particular cause of action. Colonia’s limited appeal and separate rulings are a reminder that one procedural correction does not dispose of every claim in a complaint.

Connect to the Encyclopedia

Start with the verification requirements hub: Chapa, response evidence and denial timing. For the related historical decisions:

• Daily Medical: insufficient proof that verification requests were mailed
• Longevity: initial bill receipt versus verification-response receipt
• Compas: separate factual disputes across different claims
• City Care: responses expressly leaving verification unanswered

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