Key Takeaway
New Horizon Surgical case analysis: Court dismisses no-fault claim when plaintiff's affidavit failed to include requested informed consent form despite claiming full compliance.
New Horizon Surgical Ctr., L.L.C. v Travelers Ins., 2019 NY Slip Op 50281(U)(App. Term 2d Dept. 2019)
“In opposition to the motion, plaintiff submitted an affidavit which stated that all of the verification requested by defendant was provided to defendant and that a copy of the verification provided was annexed. Among the documents annexed was a medical report in which the treating provider stated that plaintiff’s assignor had signed a “separate, comprehensive Informed Consent Form which has been made a portion of the patient’s chart.” Defendant’s verification request included a request for a signed informed consent form executed by plaintiff’s assignor. However, no such document was annexed to plaintiff’s papers as having been provided to defendant. Thus, plaintiff failed to raise an issue of fact as to whether it had provided all of the requested verification.”
When an affidavit with no exhibits stating that Plaintiff complied with the verification, a triable issue of fact is raised. Here, the Plaintiff presented supporting documentation but failed to annex one item. The affidavit stated all verification was sent to Defendant. The result is that the complaint is dismissed.
Now, I agree with the result in this case. How do you reconcile this matter with the consistent denial of summary judgment motions when nothing is submitted with the affidavit?
