Enough with the Rybak verification affidavit

The insurer proved timely verification requests and nonreceipt in Great Health Care Chiropractic v Hereford. It still did not obtain summary judgment: the provider owner’s affidavit raised a presumption that the response had been mailed and received. Jason criticized that result in June 2016. His criticism remains part of this archive, but it should be distinguished from what the court held and from what the short published opinion does not reveal.

Historical note — Last reviewed: September 2026. Great Health Care, 2016 NY Slip Op 50858(U), left a factual issue over prematurity. New York Manual (2023) later rejected a qualified statement of partial compliance on its own record. That comparison does not establish that Great Health Care was overruled or that either kind of affidavit automatically wins.

The motion the insurer lost

The June 3, 2016 decision came from the Appellate Term, Second Department, for the Second, Eleventh, and Thirteenth Judicial Districts. Hereford appealed the denial of its motion to dismiss the provider’s assigned no-fault claim as premature.

The insurer made an initial showing that it timely mailed both its verification request and follow-up and had not received the requested verification. The provider opposed with its owner’s affidavit. The court found that affidavit sufficient to raise a presumption that the requested verification had been mailed to and received by the insurer.

The result was an unresolved factual issue and affirmance of the denial of Hereford’s motion. The provider did not receive an appellate judgment ordering payment. Nor did the court make a final finding that the response was actually received. It concluded that the insurer had not established entitlement to judgment on that disputed record.

What can be said about the affidavit

The opinion identifies the owner as the affiant and states the legal effect of the affidavit. It does not reproduce the affidavit, give its mailing dates, or list its exhibits. An earlier expansion of this article asserted that the affidavit lacked dates and attachments. Those details cannot be verified from the reported decision and are not presented here as established facts.

Jason’s original post argued that the supporting materials should have been supplied. That is the position he urged, not a finding that the Appellate Term adopted. The distinction matters particularly because a reader may reach this archive while looking for an affidavit to use in a different case.

The title’s reference to a “Rybak verification affidavit” reflects the contemporary commentary. It is not the name of a prescribed form, a regulatory category, or an evidentiary shortcut. The contents of the actual affidavit and the witness’s knowledge remain more useful than the label.

Jason’s original June 2016 commentary

The following preserves the original personal observations, criticism, and predictions. References to Jason’s then-pending calendar and resolved cases describe his practice at that time. The prediction that leave to appeal would be granted was his assessment, not a guarantee of appellate permission.

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.

An affidavit can be evidence without deciding the case

St. Vincent’s Hospital of Richmond v GEICO, 50 AD3d 1123 (2008), recognizes evidence from an employee familiar with standard office practices designed to ensure correct addressing and mailing. It illustrates why a witness need not necessarily produce a personal memory of placing one particular envelope in a mailbox to supply admissible mailing proof.

The point is not that a conclusory statement always suffices. It is that an affidavit must be assessed for the knowledge and procedures it describes. A blanket statement that only documentary exhibits can establish mailing would be inconsistent with the type of evidence discussed in St. Vincent’s.

Great Health Care applied a mailing presumption to the provider’s response. It also cited Healing Health Products v New York Central Mutual, 44 Misc 3d 59 (2014). There, a detailed description of incoming-mail recording and a review of computer and physical files raised a factual issue over whether requests had been properly mailed. That case involved incoming requests, not a final determination that the provider had supplied responsive verification.

These distinctions keep three questions separate: was the request mailed, was a response mailed, and did that response contain the requested material? A presumption may help answer a mailing question without resolving the contents or sufficiency of the response. A denial of summary judgment leaves the disputed question open; it does not settle witness credibility.

Compare complete response with qualified response

In the 2015 trilogy, the appellate court found unresolved response issues. The motions and dispositions were not identical, which is why the separate note identifies who sought judgment in each appeal.

New York Manual supplies a later contrast. The owner’s 2023 affidavit asserted mailing only to the extent the response was proper and the materials were in his possession. The court found that the provider had not demonstrated production or offered a reasonable justification for failing to comply. The qualification mattered: it did not tell the court what remained unproduced and why.

A provider preparing an affidavit can use the comparison to test whether the statement actually addresses the demand. Does it identify the records supplied? Does the witness explain how they know what was transmitted? If something was withheld, does the evidence explain the reason rather than simply announcing that the provider considered it improper?

An insurer reviewing that statement should likewise identify the missing proof, rather than relying on the affidavit’s label or the fact that similar wording appeared in another case. The reported decision does not support an inference that repeated language alone establishes misconduct.

What to preserve for a response dispute

The useful materials are the request, the response, the records identified in each, and the evidence of transmission. An office-procedure affidavit can explain how correspondence was addressed, dispatched, logged, or retrieved. Copies can show what the communication contained. A contemporaneous claim record can help distinguish an actual response from a later recollection.

These are file-review recommendations drawn from the issues in the cases, not an inflexible judicial checklist. The relevant evidence depends on the asserted defense and what the other side disputes. If a motion is denied, preserve those materials for the unresolved proceedings rather than treating the denial as a final ruling that the bill is payable.

For the separate 120-day production and denial questions, use the current verification guide linked below. Chapa’s 2026 denial-timing ruling does not decide whether the affidavit in Great Health Care was sufficient, and it should not be offered as a substitute for that evidentiary analysis.

Connect to the Encyclopedia

Start with the verification rules and historical case library for the current framework and the cases behind it.

• The 2015 verification-affidavit trilogy and disputed responses
• New York Manual: partial compliance without a sufficient explanation
• Lenox Hill: proof of mailing and verification still outstanding
• Lewin: third-party MRI films and an objection letter

For review of a particular verification dispute, see our New York no-fault defense practice or contact the firm about the request, response, and claim record. Please do not send medical records or sensitive identifiers through an unverified channel.