Enough with the Rybak verification affidavit

The Verification Affidavit Problem in New York No-Fault Litigation

In New York no-fault insurance litigation, medical providers frequently encounter insurance carriers’ denials based on alleged failure to respond to verification requests. When these cases reach summary judgment, the question becomes whether the provider submitted adequate proof that they complied with verification demands. The Appellate Term, Second Department, has developed a troubling pattern of accepting boilerplate affidavits asserting that verification was “mailed” without requiring providers to submit the actual verification materials as evidence.

This approach fundamentally undermines the evidentiary standards that govern summary judgment motions under CPLR 3212. Summary judgment is only appropriate when the moving party establishes its entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Conversely, a party opposing summary judgment must produce evidentiary proof in admissible form to create genuine triable issues. The mere assertion that something was mailed, without documentary support, fails to meet this burden.

The Rybak verification affidavit has become shorthand among practitioners for a specific type of conclusory affidavit that claims compliance with verification requests but provides no substantive proof. These affidavits typically state that the provider’s owner or representative “mailed” the requested verification materials to the insurance carrier, yet conspicuously fail to attach copies of what was allegedly sent. Under established New York evidence law and procedural rules, such unsupported assertions should be insufficient to defeat a properly supported summary judgment motion.

Case Background: Great Health Care Chiropractic v. Hereford Insurance

Great Health Care Chiropractic, P.C. v Hereford Ins. Co., 2016 NY Slip Op 50858(U)(App. Term 2d Dept. 2016)

In Great Health Care Chiropractic, the insurance carrier moved for summary judgment dismissing the provider’s claim as premature, asserting that the provider failed to respond to verification requests before commencing litigation. The carrier established prima facie entitlement to judgment by demonstrating that it timely issued verification requests and received no response. This shifted the burden to the plaintiff provider to raise a triable issue of fact regarding compliance.

The provider’s opposition relied on an affidavit from the practice owner asserting that verification materials had been mailed to the defendant insurer. Critically, the affidavit did not attach copies of the verification documents allegedly sent, nor did it provide detailed information about the specific materials transmitted, the date of mailing, or other circumstantial evidence that would corroborate the mailing claim.

Despite these evidentiary deficiencies, the Appellate Term found that the affidavit was sufficient to create a presumption of mailing and receipt, thereby generating a triable issue of fact that precluded summary judgment in favor of the insurance carrier.

Jason Tenenbaum’s Analysis

This is my plea to those at the Appellate Term who read this blog. You seriously need to stop finding triable issues of fact on verification cases because: “However, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant”

I would think if the law requires a party to tender their proof (one way or another) in support of or in opposition to a motion for summary judgment, then that proof should be tendered. If verification requested is a photo of a sunset over the Atlantic ocean and the affidavit says it was “mailed”, what should be annexed as an exhibit? A photo of the sunset over the Atlantic ocean.

But aside from trying to get the Appellate Term to hear reason, I put the blame on this predicament on the carriers. Why? Nobody seeks leave to the Appellate Division. A well support leave application would be granted. What is a well supported leave application? It is EVERY case that this has come up (we are at 100 now). A copy of the “affidavit” of compliance and a statement that this is used in every verification case will probably cause the App. Div. to look into these cases.

While I try to solve these proof problems at the Appellate Division, this will surprise you to know that all of my Rybak verification cases have settled or have been resolved. My hands are tired, otherwise I would have been on top of this awhile ago.

FYI – my next issue is rocket docket, 2106 (again) and collateral estoppel of PIP awards on UM cases and Thrasher. I have a busy Appellate Division calendar on top of running a business.

Legal Significance and the Burden of Proof

The Great Health Care Chiropractic decision represents a continuing departure from established summary judgment principles in verification cases. Under controlling New York precedent, conclusory allegations unsupported by documentary evidence are insufficient to defeat summary judgment. The Court of Appeals has repeatedly emphasized that parties opposing summary judgment must produce evidentiary proof in admissible form, not mere allegations or conclusory statements.

The mailbox rule provides a rebuttable presumption of receipt when proper mailing is established, but that presumption requires threshold proof that the item was actually mailed in the first place. Simply asserting “I mailed it” without corroborating documentation should not trigger this presumption. Proper proof of mailing typically includes affidavits describing standard mailing procedures, proof of postage, copies of the mailed materials, or other objective evidence supporting the mailing claim.

By accepting bare assertions of mailing as sufficient to defeat summary judgment, the Appellate Term has inadvertently created a verification litigation environment where providers can escape the consequences of non-compliance through boilerplate affidavits. This approach undermines the verification process that insurance regulations established to ensure efficient claim processing and fraud prevention.

Practical Implications for Insurance Carriers and Providers

Insurance carriers facing verification non-compliance must recognize that the Appellate Term’s lenient approach to verification affidavits has created significant litigation challenges. Carriers should consider seeking leave to appeal to the Appellate Division when confronted with conclusory verification affidavits that lack substantive proof. As Jason Tenenbaum notes, a well-supported leave application highlighting the pattern of cases accepting insufficient proof could persuade the Appellate Division to provide definitive guidance on proper evidentiary standards.

Medical providers should understand that while the current Appellate Term case law may provide temporary litigation advantages, the better practice remains compliance with verification requests and maintenance of detailed records documenting such compliance. Providers should retain copies of all verification materials sent to insurers, document mailing dates and methods, and preserve evidence of the specific information transmitted. This documentation serves not only to defeat summary judgment motions but also to establish good-faith compliance with regulatory obligations.

The broader implication extends to the integrity of New York’s no-fault system. If verification requirements become unenforceable through inadequate proof standards, the system’s efficiency and fraud prevention mechanisms will be significantly compromised. Courts must balance the need to protect legitimate provider claims against the system’s requirement for meaningful verification compliance.

Key Takeaway

The Appellate Term’s acceptance of conclusory verification affidavits without requiring substantive proof creates a problematic standard that departs from established summary judgment principles. Insurance carriers should consider seeking appellate review to establish proper evidentiary requirements, while providers should maintain thorough documentation of verification compliance rather than relying on bare assertions of mailing. The ultimate resolution of this issue will likely require Appellate Division intervention to clarify the proof standards applicable to verification disputes.

Related Articles

• Understanding verification requests and mailing requirements in New York no-fault claims
• When technical verification requirements override common sense in no-fault cases
• The 150-day verification rule in New York no-fault insurance
• How equitable considerations have invaded no-fault law
• New York No-Fault Insurance Law