Mailing affidavit is wrong

When Affidavits Contradict Basic Logic: A Costly Documentation Error

In no-fault insurance litigation, medical suppliers and healthcare providers must prove they timely submitted claim forms to insurance companies within strict deadlines. This typically requires sworn affidavits from employees who handled the mailing process. However, as one recent case demonstrates, even the most well-intentioned affidavit can backfire spectacularly when it contains impossible claims that defy the basic laws of time and space.

The case of Greenway Medical Supply Corp. v ELRAC, Inc. serves as a cautionary tale about the critical importance of accuracy in affidavit preparation. When an employee swears under oath to facts that are physically impossible, the entire affidavit loses its probative value in court. This principle applies broadly to various types of legal documentation, from defective notarization issues to problems with electronic submissions.

Case Background

Greenway Medical Supply Corp. provided medical equipment or supplies to an injured patient covered by ELRAC, Inc.’s no-fault insurance. Under New York’s no-fault regulations, medical providers must submit claims within 45 days of providing services or supplies. Meeting this deadline is crucial because late claims can be denied solely on timeliness grounds, regardless of their substantive merit.

When litigation ensued over Greenway’s unpaid claims, the company needed to prove that it had timely submitted its claim forms within the 45-day window. Initially, Greenway moved for summary judgment but apparently failed to provide adequate proof of timely mailing. The insurance carrier moved for summary judgment dismissal, arguing that Greenway had not established timely submission of claims.

In opposing the carrier’s motion, Greenway submitted an affidavit from one of its employees who supposedly had personal knowledge of the mailing. This employee swore under oath that the claim form had been mailed on June 23, 2010. However, there was one glaring problem with this sworn testimony: the claim form itself was dated July 1, 2010—more than a week after the date the employee swore it had been mailed. The affiant claimed to have mailed a document before it even existed.

The Appellate Term identified this logical impossibility and ruled that the affidavit had “no probative value.” Without credible evidence of timely mailing, Greenway could not establish its prima facie case, leaving the company vulnerable to summary judgment dismissal based on late filing.

Jason Tenenbaum’s Analysis:

Greenway Med. Supply Corp. v ELRAC, Inc., 2016 NY Slip Op 51774(U)(App. Term 2d Dept. 2016)

“Furthermore, while plaintiff argues on appeal that its employee’s affidavit, which was submitted in opposition to plaintiff’s motion, was sufficient to establish that plaintiff had mailed its claim form within 45 days of the provision of the supplies, the affidavit has no probative value. The claim form was dated July 1, 2010 and the affidavit states, allegedly based upon the affiant’s personal knowledge, that the claim form was mailed on June 23, 2010.”

Mr. Greenway seems to have lost track of time.

Legal Significance

The Greenway Medical Supply decision reinforces fundamental principles about the evidentiary requirements for affidavits in civil litigation. First, affidavits must be internally consistent and must not contradict objective facts or basic logic. When an affiant swears to facts that are demonstrably impossible—such as mailing a document before it was created—courts will reject the entire affidavit as lacking probative value. The impossibility of the stated facts undermines the affiant’s credibility and raises questions about whether the affiant actually has personal knowledge of the events described.

Second, the decision emphasizes that “personal knowledge” requires more than simply believing something to be true. Personal knowledge means the affiant directly observed or participated in the events being described. An employee who claims personal knowledge that a document was mailed on June 23rd should be able to explain how they know this—perhaps they personally took it to the post office, or they observed it being placed in outgoing mail on that date. When the sworn facts are impossible, it becomes clear that the affiant could not actually have personal knowledge as claimed.

Third, the case demonstrates that courts will not overlook even seemingly minor errors in affidavits when those errors involve fundamental contradictions. Some might argue that the date discrepancy was a simple mistake—perhaps the employee meant to say June 23rd was when the form was prepared, not mailed, or perhaps the date on the form was erroneous. However, courts dealing with sworn testimony demand accuracy. Parties cannot expect judges to speculate about what affiants “really meant” when their sworn statements are contradictory or impossible.

As Jason Tenenbaum dryly observes, Mr. Greenway “seems to have lost track of time.” This comment captures the essential problem: regardless of whether the error resulted from carelessness, confusion, or intentional fabrication, the affidavit could not support Greenway’s burden of proof. In summary judgment practice, where parties must present competent evidence supporting their positions, fatally flawed affidavits provide no evidentiary value whatsoever.

Practical Implications

For healthcare providers and medical suppliers, this case underscores the critical importance of quality control in affidavit preparation. Before submitting affidavits to courts, providers should carefully review them to ensure internal consistency and consistency with documentary evidence. Someone other than the affiant—preferably an attorney or paralegal with litigation experience—should compare dates and facts in the affidavit against documents referenced therein, identifying any discrepancies before submission.

Providers should also implement robust billing and mailing documentation procedures to reduce reliance on employees’ memories of specific mailing dates. When employees can refer to contemporaneous mailing logs, postage meter records, or certified mail receipts rather than trying to recall dates months or years after the fact, affidavits are more likely to be accurate. Some providers implement procedures requiring employees to note mailing dates on file copies of documents at the time of mailing, creating contemporaneous records that can refresh recollection when affidavits are later needed.

Additionally, providers should recognize that courts may sometimes allow corrective affidavits addressing errors in initial submissions. While the Greenway decision does not discuss whether the court would have permitted a second, corrected affidavit, other cases have allowed a second affidavit to clarify ambiguities or correct mistakes in initial affidavits. However, parties should not assume courts will provide such opportunities. The better practice is to ensure affidavits are accurate before initial submission rather than hoping for chances to fix errors later.

For insurance carriers, this decision provides a reminder to carefully scrutinize affidavits submitted by opposing parties. When reviewing plaintiff’s submissions in no-fault litigation, carrier counsel should compare dates and facts stated in affidavits against documents attached as exhibits or referenced in the affidavits. Identifying contradictions or impossibilities—such as claiming to mail documents before they were created—can provide grounds for defeating summary judgment motions or supporting carriers’ own dispositive motions.

For all practitioners, the case emphasizes the importance of the review process before filing papers with courts. Law firms should implement procedures requiring multiple levels of review for affidavits and other sworn submissions. A paralegal or associate who prepares an affidavit should not be the only person who reviews it before filing; senior attorneys should examine affidavits to identify potential problems that less experienced staff might miss.

Key Takeaway

This case underscores why careful review of affidavits is essential before submission. While courts may sometimes allow a second affidavit to clarify certain issues, fundamental contradictions like claiming to mail a document before it was created will render the entire affidavit worthless. Medical providers and suppliers should implement thorough documentation review processes to avoid such costly errors. This includes cross-checking dates between affidavits and underlying documents, ensuring affiants truly have personal knowledge of events they describe, and implementing contemporaneous record-keeping systems that reduce reliance on after-the-fact recollections that may prove inaccurate.

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