Verification issues

In Atlantic Radiology v Travelers, the provider’s failure to fully respond to verification was undisputed. The Appellate Term, First Department, upheld dismissal even if it accepted the provider’s speculative claim that the follow-up request was two days late. The decision did not find a proven two-day delay, invent a 15-business-day provider response deadline, or replace mailing affidavits with a new documentary-proof requirement.

Historical note — Last reviewed: September 2026. Atlantic Radiology, 2018 NY Slip Op 50053(U), applied earlier verification cases to its particular record. The current Regulation 68 text, sections 65-3.5(b), 65-3.5(p), and 65-3.6(b), supplies the timing provisions. Chapa (2026) separately rejects a mandatory 150-day denial deadline; it does not decide this follow-up dispute.

What Atlantic Radiology actually decided

The January 18, 2018 opinion affirmed an order granting Travelers summary judgment and denying the provider’s cross-motion. The underlying claims sought assigned first-party no-fault benefits. On the appellate record, the provider had not fully responded to the insurer’s verification requests.

The provider asserted that the follow-up was two days beyond the regulatory period. The court called that assertion speculative and explained that, even accepting it, the insurer did not lose the toll under the circumstances. The court cited St. Vincent Medical Care, Infinity Health Products, and Triangle R. It did not describe an established mailing date from which a reader could independently reproduce the alleged delay.

This is an important limitation when citing the case. An argument the court assumes for purposes of its analysis is not necessarily a fact the court finds. An earlier version of this note described the follow-up as actually late and added details about an incomplete response that the short opinion does not supply. The supportable account is narrower: incomplete compliance was undisputed, and the alleged timing defect did not change the result.

The calendar should not mix business and calendar days

Under section 65-3.5(b), an insurer seeking additional verification after receiving the prescribed verification forms generally must request it within 15 business days of receipt. That is the insurer’s additional-request provision. It is not a corresponding 15-business-day deadline imposed on the provider.

Section 65-3.6(b) addresses follow-up. If requested verification has not been supplied 30 calendar days after the original request, the insurer must, at a minimum, follow up within 10 calendar days. The regulation permits a properly documented telephone call or mail and also requires written identification of the missing verification and its source to the applicant and attorney. Calling this a 10-business-day period changes the rule.

The payment-or-denial period is another distinct clock. Section 65-3.8(a)(1) measures it from receipt of proof of claim, including the relevant requested verification. Whether a request preserves a toll depends on the applicable rules and evidence; the bare fact that 30 days have passed since a bill arrived is not the whole inquiry.

Jason’s original January 2018 questions

Jason identified a possible tension between the appellate courts’ approaches and asked how the decision fit the affidavit cases. These are his contemporaneous observations and questions. They should not be converted into a finding that Atlantic Radiology created a new proof standard.

Two points to be fleshed out here. First, all verification was not received. Problem. Second, the follow-up can be late without consequence. I sense divergence from the Second Department (AT).

Initially, a late follow-up according to the AT second department eliminated the toll. The AT First says otherwise.

Second, how do you harmonize the line of AT 2nd cases saying that the affidavit of compliance with verification is sufficient whereas this case which seems to look for record support regarding received verification?

Compare the cited cases before claiming a departmental split

Infinity Health Products v Eveready, 67 AD3d 862 (2009), was itself an Appellate Division, Second Department, decision. It allowed a prematurity defense despite a follow-up three days early where the provider ignored both requests. That source makes a blanket claim that the Second Department always required exact timing unsustainable.

St. Vincent Medical Care v Country Wide, 80 AD3d 599 (2011), also came from the Second Department. It rejected the conclusion that a follow-up on day 30 was ineffective. Because verification remained incomplete, the court granted a prematurity dismissal without prejudice to a new action.

Triangle R v Praetorian, 2010 NY Slip Op 52294(U), came from the Appellate Term, First Department. It addressed an early follow-up and a later follow-up outside the stated interval. Mailing and nonresponse were undisputed. The court preserved the toll in those circumstances and did not let the early request invalidate the later request.

These decisions support careful factual comparisons, not a statewide rule that timing never matters. They also distinguish the Appellate Division from the Appellate Term. A description of a lower appellate court’s practice should not erase contrary decisions from the higher court in the same department.

Why the affidavit cases ask a different question

The 2015 verification-affidavit trilogy involved factual disputes about responses. Atlantic Radiology began with failure to fully respond undisputed. Those different starting points can produce different results without changing the rules for admitting an affidavit.

The opinion does not require insurers to produce documents instead of testimony. It does not say which missing records every future motion must attach. A sound comparison identifies whether the opponent actually disputes compliance, then examines the evidence supporting that dispute. If the papers establish a factual disagreement about what was sent, a decision premised on undisputed incomplete compliance will not answer it by itself.

For providers, a timing objection and a response affidavit do different jobs. The first challenges the insurer’s chronology. The second supplies evidence about compliance. Neither should be described as automatically proving the other. For insurers, it matters whether the record truly makes nonresponse undisputed or whether that is only the moving party’s characterization.

Section 65-3.2(f) also directs prompt responses to communications when a response is indicated. That claim-practice principle remains relevant when the file contains an objection or an attempted response. Atlantic Radiology’s short opinion does not describe such an exchange in detail. It therefore should not be used to dispense with reviewing the communications or to infer that the insurer can ignore every objection letter.

Using this note with the current regulation

The 2013 addition of section 65-3.5(p) states that specified technical defects, omissions, and timing departures do not negate the applicant’s obligation to comply. Its scope and effective-date language should be read alongside the follow-up provision. It does not make proof of a request unnecessary or declare every possible demand valid.

The qualified 120-day rule in sections 65-3.5(o) and 65-3.8(b)(3) is a separate subject. It addresses production of verification under the applicant’s control or possession, or written proof of reasonable justification, and excludes prescribed NF-forms, medical examinations, and examinations under oath. It is not a reason to wait 120 days before answering ordinary correspondence.

For a current file, record the initial request, the follow-up, the proof supporting each mailing, every response, and the date suit began. Then identify whether the issue is timing, incomplete production, a disputed mailing, or an actual denial. Atlantic Radiology helps with one of those comparisons. It is not a substitute for determining which dispute the file presents.

Connect to the Encyclopedia

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

• Infinity: the early follow-up and two unanswered requests
• The 2013 Regulation 68-C amendment and its limits
• Lenox Hill: proof of mailing and verification still outstanding
• The 2015 verification-affidavit trilogy and disputed responses

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.