Justification for a lt

A provider’s statement that it mailed verification “to the extent” the request was proper and the material was in its possession left the important questions unanswered. In Burke Physical Therapy v State Farm, decided July 1, 2022, the Appellate Term upheld dismissal after finding that the owner’s affidavit did not show compliance or a reasonable justification for failing to comply.

Legal Update: Burke rejected the particular affidavit before it, not every possible explanation for unavailable records. Under 11 NYCRR 65-3.5(o) and 65-3.8(b)(3), qualifying requests require production or written reasonable justification; Chapa (2026) rejected an added mandatory 150-day denial cutoff, not the underlying response obligation.

Last reviewed: September 2026.

The original title is retained as part of this 2022 archive entry. The subject is a qualified verification-response affidavit, not a new form of justification created by the court.

What the court actually reviewed

State Farm had obtained summary judgment dismissing the provider’s no-fault complaint. The provider had also moved to compel discovery and dismiss affirmative defenses; that motion was denied as academic when the insurer prevailed.

On appeal, the provider challenged the treatment of its owner’s affidavit. State Farm’s claims specialist said none of the requested documents had been received. The owner responded with a qualified assertion that requested material had been mailed insofar as the response was proper and the material was possessed.

The court held that this was insufficient to raise a triable issue. It affirmed the order. It did not identify a particular document as privileged, rule that any requested record did not exist, or approve a specific explanation for withholding an item. Those possibilities should not be written into Burke’s facts.

Why the qualification mattered

A sentence can sound like proof of mailing while avoiding a commitment about what was mailed. The qualification here did not resolve whether all requested verification was supplied. It also did not establish a reasonable justification for not complying.

Compare an itemized response with a statement that some unspecified responsive documents were sent. An itemized response identifies the request, states which records accompany the letter and explains the position taken on any remaining item. That does not guarantee legal sufficiency, but it gives the insurer and a later court something concrete to evaluate.

The same applies to an affidavit. Its signer must have a basis for the statements made. A practice owner’s title does not prove personal mailing, familiarity with a mailing procedure, or the contents of a particular envelope. Great Health Care Chiropractic reached a different result on an affidavit the court found sufficient; Burke is a useful comparison, not a contradiction that makes either affidavit automatically acceptable.

What the regulation requires for qualifying requests

11 NYCRR 65-3.5(o) calls for verification within the applicant’s control or possession, or written proof providing reasonable justification for noncompliance, within 120 calendar days from the initial request. The insurer must give the specified warning that a failure to do so may result in denial.

Section 65-3.8(b)(3), which Burke cites, permits denial after more than 120 calendar days if its conditions are met. This framework excludes requests for prescribed NF forms, medical examinations and examinations under oath. Its stated effective-date conditions also matter. It is not a universal deadline for every communication in a no-fault file.

The fifteen-business-day provision in section 65-3.5(b) addresses when an insurer requests additional verification after receiving completed prescribed forms. It is not a blanket fifteen-business-day deadline for a provider to respond.

Give the explanation while the claim is being handled

Jason’s original observation below emphasizes raising a properly articulated justification during claims processing. That is sensible when read with the regulation’s written-response requirement. Waiting for litigation leaves no contemporaneous response for the insurer to assess and can expose the claim to a qualifying denial.

But Burke should not be enlarged into a holding that every later affidavit is categorically inadmissible or that every objection has been adjudicated on its merits. The court rejected the specific qualified affidavit before it. The opinion does not set out every request, every date or a recognized justification that the provider had actually supplied.

When a record is unavailable, distinguish the reason. Is it not in the practice’s possession, outside its control, nonexistent, or subject to a specific legal objection? Those positions require different factual support. Do not claim all of them as interchangeable reasons to withhold the same document.

The 2026 timing update

Chapa Products v MVAIC rejected the lower court’s imposition of a mandatory denial deadline 150 days after the initial verification request. It did not remove the applicant’s duty to provide responsive material or written reasonable justification, and it did not dispense with the conditions for a qualifying denial.

The 2026 verification guide connects that development to the older receipt and response cases. For this post, the practical lesson remains specific: document what was sent and give an actual explanation for what was not. A reservation that covers only whatever happened to be proper and available can leave both points unproved.

Before relying on this case, compare the insurer’s requests, warning language and mailing proof with the provider’s complete response and transmission records. The published opinion supplies the legal result; it cannot supply missing facts in another claim file.

Jason’s original commentary

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

That underline passage is important. If performed during the claims processing stage and the basis is properly articulated, the App. Term may go along with it,“

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.
• Island Life: proof at a limited verification trial.
• Bronx Acupuncture: By Report documentation.
• Excel Surgery: answering the specific requested items.
• Great Health Care: evidence that verification was mailed.
• Lida’s Medical Supply: preserving a subsection (p) argument.

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.