Additional Verification in No-Fault: What Counts as a Proper Response (Excel Surgery v Fiduciary)

A response to a verification request can fail even though the provider sent a letter. In Excel Surgery Center v Fiduciary Insurance Co. of America, decided April 3, 2017, the facility said it did not possess all medical records and referred the insurer to the treating provider. It did not identify a particular requested item it lacked. The Appellate Term affirmed dismissal of the action as premature.

Legal Update: Excel Surgery’s comparison to Mount Sinai v Auto One (2014) concerns a factual dispute over particular requested records, not automatic payment whenever a provider says it lacks them. The separate qualifying 120-day denial framework must be read with Chapa (2026).

Last reviewed: September 2026.

The undisputed starting point

Fiduciary’s timely mailing of the initial and follow-up verification requests was undisputed. It was also undisputed that Excel did not provide the requested information.

The provider instead explained that it was an ambulatory facility and did not have all medical records. Its letter did not address a specific request or state that a particular requested item was outside its possession.

Those omissions mattered. The court did not rule that an ambulatory facility necessarily possesses every record generated by a treating physician. It held that this facility’s general response failed to show adequate compliance with the requests actually made.

What was missing from the response

Saying that an office does not possess “all” records is not the same as saying whether it possesses the records the insurer requested. Some requested items might be available; others might not exist or might be held elsewhere. The letter did not distinguish among them.

The court found that the insurer established nonreceipt and that the provider did not show it had supplied all requested items in its possession. On that record, the payment period had not begun to run under section 65-3.8(a)(1), and the action was premature.

The result was dismissal of that action, not a finding that every requested document existed or that the treatment was unnecessary. Those are different questions.

What Mount Sinai v Auto One actually held

The opinion contrasts Excel’s response with Mount Sinai Hospital v Auto One Insurance Co., 121 AD3d 869, decided October 15, 2014. The difference is more specific than a magic phrase saying “we do not have it.”

In Mount Sinai, the hospital’s representative addressed prior records, surgical photographs and cervical MRI films separately. The response identified material outside the hospital’s possession, said the hospital was not authorized to release certain films, and stated that its treatment records had been mailed.

The Second Department found factual issues about the propriety of some requests, including whether the requested material existed or was possessed by the hospital or the patient. The insurer therefore did not establish entitlement to summary judgment. The court also declined the hospital’s request to search the record and award it judgment because factual issues remained.

Thus, an item-specific response may materially change the motion record. It does not automatically prove that the insurer must pay, that an asserted restriction on release is legally correct, or that every requested record is irrelevant.

How to make the response useful

Match the response to the actual requests. For each item, identify what is enclosed, what was previously supplied and what is not being supplied. If the reason is lack of possession or control, explain that position with facts the sender can support. If there is a legal objection, state the actual objection rather than treating every kind of unavailability as the same issue.

Preserve the documents and their transmission history. A response saying records were sent earlier should identify the earlier production sufficiently for someone reviewing the file to find it. That is a practical way to avoid ambiguity, not a court-approved template guaranteeing compliance.

The insurer should compare the response with its request before characterizing the entire production as absent. There is a difference between receiving no response, receiving some responsive documents and receiving a specific explanation for an item not supplied. Excel does not authorize ignoring those differences.

Current timing is a separate inquiry

11 NYCRR 65-3.5(b) and 65-3.6(b) govern the insurer’s additional-verification request and follow-up process. A request does not preserve a toll merely because it bears the word “verification”; its timing and substance must support that treatment.

For qualifying requests, sections 65-3.5(o) and 65-3.8(b)(3) provide a 120-calendar-day production-or-written-justification framework and permit denial after that period when the stated conditions are met. The warning requirement, effective dates and exclusions for prescribed NF forms, IMEs and EUOs matter.

Chapa Products v MVAIC rejected a mandatory 150-day denial cutoff in 2026. It did not convert an inadequate response into adequate verification or make every outstanding-verification dispute an indefinite open account.

The practical distinction in this archive

Burke Physical Therapy examines another conditional response: an owner claimed mailing only to the extent the request was proper and the documents were possessed. Great Health Care Chiropractic concerns an affidavit the court found sufficient to raise a receipt issue. Excel sits between the claims-handling letter and the later proof offered about it.

Read the request, the response and the motion together. Jason’s question below correctly identifies Mount Sinai as a useful comparison. The current explanation narrows the answer: a different factual record can prevent dismissal, but that is not the same as establishing entitlement to payment.

Jason’s original commentary

The original comments below are retained as historical commentary. The case-specific corrections and later developments are explained above.

So assume Plaintiff said we do not have the exact record? Different result as that would place the case into the Mt. Sinai v. Autoone category.

Frequently Asked Questions

What happens if a medical provider ignores a no-fault verification request?

A proper, timely request and required follow-up can support a defense that the payment action is premature while relevant verification remains outstanding. Qualifying requests may also support a denial after the separate 120-day process. Neither result follows automatically from a letter labeled verification; the requests, notice requirements and record must be examined.

Is telling the insurer “we don’t have all the records” a sufficient verification response?

Not on the record in Excel Surgery. The facility’s general statement did not identify any particular requested item it lacked or show adequate production of requested items in its possession. A response needs to address the actual request, not merely describe the facility’s general role.

What should a provider do if it truly does not possess a requested record?

Identify that record specifically and explain the supported facts about possession, control or any legal objection. Preserve the response and its transmission proof. Mount Sinai v Auto One found factual issues on an item-specific record; it did not hold that asserting nonpossession automatically requires payment.

Connect to the Encyclopedia

Start with the no-fault verification hub and 2026 Chapa update for the governing framework and case directory. Related case notes:

• E4 Services: denying receipt of the insurer’s requests.
• Burke Physical Therapy: a qualified response affidavit.
• Infinity’s 2008 decision and its reversal.
• Island Life: proof at a limited verification trial.
• Bronx Acupuncture: By Report documentation.
• The 2009 Infinity appeal: from pending issue to decision.
• Mount Sinai: the NF-5 after a defective UB-04.
• Great Health Care: evidence that verification was mailed.

For review of a particular no-fault verification dispute, request a Free Case Review. Keep the requests, responses and relevant claim dates available for that review.