Boilerplate affidavit mandates triable issue of fact on verification issue

New York’s no-fault insurance system imposes strict obligations on both insurers and medical providers to respond promptly to verification requests. When insurance carriers seek additional documentation to substantiate medical claims, providers must respond within prescribed timeframes or risk denial of payment. Conversely, insurers must demonstrate proper procedures when asserting that providers failed to respond to verification requests. The evidentiary standards governing these disputes have become increasingly contentious, particularly regarding what proof suffices to establish that verification materials were actually mailed.

A troubling trend has emerged in Appellate Term decisions from the Second Department, where courts accept conclusory boilerplate affidavits as creating triable issues of fact despite the affidavits’ lack of specific detail about verification responses. This jurisprudential development creates asymmetry between the detailed proof insurers must provide to establish proper mailing and the minimal showing providers can make to defeat summary judgment. The trilogy of 2015 decisions discussed below illustrates this problematic standard and its implications for no-fault litigation.

Case Background

Three companion cases from the Appellate Term, Second Department, demonstrate the court’s willingness to find triable issues of fact based on minimal provider affidavits:

Longevity Med. Supply, Inc. v Allstate Ins. Co., 2015 NY Slip Op 50757(U)(App. Term 2d Dept. 2015)

New Way Med. Supply Corp. v National Liab. & Fire Ins. Co., 2015 NY Slip Op 50783(U)(App. Term 2d Dept. 2015)

New York Diagnostic Med. Care, P.C. v Country-Wide Ins. Co., 2015 NY Slip Op 50814(U)(App. Term 2d Dept. 2015)

In each case, insurance carriers moved for summary judgment based on providers’ alleged failure to respond to verification requests. The carriers submitted detailed proof of their verification procedures, including affidavits describing mailing practices, copies of verification requests, and evidence of non-receipt. The providers opposed these motions with bare-bones affidavits asserting, without specific detail or supporting documentation, that they had mailed responsive materials. Despite the absence of dates, descriptions of materials sent, or copies of the purported verification responses, the Appellate Term found these conclusory statements sufficient to create triable issues of fact.

Jason Tenenbaum’s Analysis

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.

Legal Significance

The trilogy of decisions creates a troubling asymmetry in evidentiary standards for verification disputes. When insurance companies assert proper mailing of verification requests, courts require detailed affidavits explaining office procedures, how addresses are obtained and verified, and how postage is applied. Carriers must demonstrate systematic practices ensuring reliable mailing, not merely assert that items were mailed. This rigorous standard, developed through cases like Residential Holding Corp. v Scottsdale Ins. Co. and its progeny, reflects courts’ recognition that self-serving assertions about mailing are insufficient without procedural safeguards.

However, these 2015 decisions impose no comparable standard on medical providers asserting they responded to verification requests. The Appellate Term accepted bare assertions that materials were “sent” without requiring providers to specify what was sent, when it was sent, how it was sent, or to provide copies of the purported responses. This creates perverse incentives for providers to submit form affidavits claiming verification compliance regardless of whether responses actually occurred.

The decisions also undermine the summary judgment process in no-fault litigation. Summary judgment serves to efficiently resolve cases where no genuine factual dispute exists. When courts accept conclusory affidavits as creating triable issues, they transform summary judgment into a nearly unattainable standard for insurance carriers, forcing them to trial on cases where providers offer no genuine evidence of verification compliance. This procedural obstacle increases litigation costs and delays, ultimately affecting premium rates and system efficiency.

Practical Implications

For insurance companies and defense counsel, these decisions necessitate enhanced documentation practices and strategic recalibration. Carriers should maintain comprehensive records of verification requests and follow-up communications, create detailed tracking systems showing non-receipt of responses, and prepare for trial even when providers offer only conclusory opposition to summary judgment motions. Defense counsel should consider seeking pre-motion discovery to pin down providers’ verification claims before carriers file summary judgment motions.

Medical providers and their counsel should recognize, however, that reliance on boilerplate affidavits creates litigation risks. While such affidavits may survive summary judgment in the Second Department Appellate Term, they provide weak foundations for trial. Providers who actually responded to verification requests should preserve copies of responses, maintain mailing logs, and submit this documentation in opposition to summary judgment rather than relying on conclusory statements. Providers who did not respond should seriously consider settlement rather than forcing trials based on incredible testimony.

Trial courts should also scrutinize these affidavits more carefully. When the same provider repeatedly submits identical boilerplate affidavits across multiple cases claiming verification compliance without supporting documentation, judges should question credibility and consider whether the affidavits are made in good faith. Pattern evidence of verification non-compliance across a provider’s entire case inventory may justify sanctions or adverse credibility determinations.

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• Procedural Fairness in No-Fault Insurance Litigation: Is It Fair?
• New York No-Fault Insurance Law