Key Takeaway
NY appellate court decisions create triable issues of fact with boilerplate affidavits claiming verification materials were mailed to insurance carriers.
Longevity Med. Supply, Inc. v Allstate Ins. Co., 2015 NY Slip Op 50757(U)(App. Term 2d Dept. 2015)
“n affidavit from plaintiff which asserts that material responsive to the verification requests had been sent to defendant.”
New Way Med. Supply Corp. v National Liab. & Fire Ins. Co., 2015 NY Slip Op 50783(U)(App. Term 2d Dept. 2015)
“However, upon the record before us, we find that there is a triable issue of fact as to whether plaintiff responded to those verification requests and, therefore, neither party is entitled to summary judgment”
New York Diagnostic Med. Care, P.C. v Country-Wide Ins. Co., 2015 NY Slip Op 50814(U)(App. Term 2d Dept. 2015)
“A review of the record reveals that triable issues of fact exist, including whether plaintiff adequately responded to defendant’s verification requests”
There will be many more of these cases. But it begs the question. Carrier asks for soap notes, or sign in sheets. Plaintiff provides an affidavit that says we mailed the verification, yet does not provide the date the specific verification was mailed and provide the verificaiton in its opposition papers.
Most judges find this conclusory-self serving boilerplate affidavit to be conclusory and insufficient. The law clerks’ in Brooklyn seem to think otherwise. I am at a loss on this one. Also, if the law clerks on the 15th floor see a flood of appeals where the same affidavit and same lack of response from many insurance carriers exists, can we assume that the verification was never supplied and that this is a ploy to stave off summary judgment, which should be granted?
These decisions (and many more on this exact issue) disappoint me.
