Verification, again

Verification requests are a critical procedural mechanism in New York no-fault insurance law. Under 11 NYCRR § 65-3.5(a), insurers may request additional verification to substantiate a claim within specific time frames. When a provider fails to respond to these requests, the claim is deemed premature and the insurer’s obligation to pay or deny is tolled—effectively suspending the 30-day pay-or-deny period until the requested documents are received.

The evidentiary standards for proving compliance with verification requests have generated significant litigation. In some cases, courts have held that a bare affidavit asserting compliance—without annexing the actual documents sent—is sufficient to raise a triable issue of fact. In others, as this case illustrates, the outcome turns on the specific evidence presented. The distinction can be maddeningly subtle, and Jason Tenenbaum’s commentary below highlights the tension between these seemingly contradictory results.

This case is particularly instructive because it demonstrates what happens when a provider’s own submissions undermine its claim of full compliance with verification demands.

Case Background

In New Horizon Surgical Ctr., L.L.C. v Travelers Ins., the plaintiff surgical center, as assignee of Kelvyn Aguilar, sued Travelers Insurance in Richmond County Civil Court to recover first-party no-fault benefits. Travelers moved for summary judgment, arguing that the action was premature because the plaintiff had failed to provide all requested verification. Travelers established that it had timely mailed both initial and follow-up verification requests in compliance with St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (50 AD3d 1123 [2008]).

Judge Orlando Marrazzo, Jr. denied the branch of Travelers’ motion seeking summary judgment. On appeal, the Appellate Term, Second Department (Pesce, P.J., Aliotta, and Siegal, JJ.) reversed, granting Travelers’ motion and dismissing the complaint.

Jason Tenenbaum’s Analysis:

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?

Legal Significance

This decision occupies an interesting—and arguably paradoxical—position in the verification case law. Courts have generally held that a provider’s affidavit attesting to compliance with verification requests, standing alone without exhibits, can raise a triable issue of fact sufficient to defeat summary judgment. The logic is straightforward: the affiant is stating under oath that compliance occurred, and credibility determinations are reserved for the trier of fact.

However, the Appellate Term drew a critical distinction here. When the plaintiff went beyond a bare affidavit and actually annexed supporting documents, those documents became part of the evidentiary record. The medical report’s reference to a separate informed consent form—which was requested by Travelers but never produced—created an internal contradiction that the court could not ignore. The plaintiff’s own evidence established that a requested document existed but was never furnished to the insurer, fatally undermining the affidavit’s blanket assertion of full compliance.

Practical Implications

For providers and their attorneys, this case presents a practical dilemma. While bare affidavits of compliance may survive summary judgment, attaching supporting documents introduces risk if those documents are incomplete or internally inconsistent. The safer course is to meticulously review all annexed exhibits to ensure they align with the affidavit’s assertions before filing opposition papers.

For insurers, this decision demonstrates the value of specific, itemized verification requests. Requesting particular documents—like signed informed consent forms—creates a clear checklist against which compliance can be measured. When a provider’s own records reference a document that was requested but never produced, the insurer has a powerful basis for summary judgment on prematurity grounds.

Key Takeaway

Providers responding to verification requests must ensure absolute consistency between their affidavits of compliance and the documents they annex as proof. An affidavit claiming full compliance that is contradicted by the provider’s own attached records will not raise a triable issue of fact—it will defeat the provider’s opposition entirely. The irony, as Jason Tenenbaum observes, is that a provider who submits nothing at all may fare better on summary judgment than one who submits incomplete documentation.

Related Articles

• Understanding Verification Requests in New York No-Fault Insurance Claims
• The Verification Process in No-Fault Insurance: When Technical Requirements Override Common Sense
• The 120-day rule
• Procedural Fairness in No-Fault Insurance Litigation: Is It Fair?
• New York No-Fault Insurance Law