Key Takeaway
Court rejects insurance defense motion due to improper notarization where notary signature preceded the affiant's signature, highlighting critical procedural requirements.
Technical Defects in Affidavits Can Derail Insurance Defense Strategies
In no-fault insurance litigation, insurance companies frequently rely on affidavits to establish defenses, particularly when claiming that an injured party failed to appear for scheduled independent medical examinations (IMEs). However, even seemingly minor technical defects in these sworn statements can prove fatal to an insurer’s case, as demonstrated in a recent Appellate Term decision that highlights the importance of proper notarization procedures.
The case serves as a reminder that courts scrutinize affidavits carefully, and defective notarization can undermine even strong substantive arguments. When procedural requirements aren’t met, the entire foundation of a legal argument may crumble, regardless of the underlying merits.
Jason Tenenbaum’s Analysis:
New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 2016 NY Slip Op 51527(U)(App. Term 2d Dept, 2016)
“Defendant’s motion was properly denied, as defendant failed to establish, as a matter of law, that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations. Among other things, the affidavit attesting to the second failure to appear indicates, on its face, that it had been notarized before it was signed (see e.g. 97 NY Jur 2d, Summary Judgment, Etc. § 47 ).”
This is an interesting one. The notarization occurred before the signature? I am guessing the affiant’s signature was an original and the notary signature was a photocopy? How was this determined?
Key Takeaway
This decision underscores that procedural compliance in affidavits is just as important as substantive content. Insurance companies must ensure proper notarization sequences, as an affidavit really is not an affidavit when fundamental requirements aren’t met. Even when a second affidavit to clarify is allowed, prevention through careful preparation remains the best strategy.
