Five Boro Psychological v GEICO: A Psychologist's Affirmation Fails Under CPLR 2106

Key Takeaways

• GEICO’s peer review reports were affirmed by a psychologist — but under CPLR 2106 as it read in 2012, only attorneys, physicians, osteopaths, and dentists could affirm in place of swearing an affidavit.
• A notary’s stamp and signature on a report, without an attestation that the affiant appeared and was duly sworn, does not convert it into an affidavit.
• Inadmissible peer review reports cannot support summary judgment on a lack-of-medical-necessity defense, so the provider won on procedure rather than the merits.
• CPLR 2106 has since been amended (effective January 1, 2024) to let any person affirm under penalty of perjury — but form-of-proof objections still decide no-fault motions filed under the old regime and still apply to defective jurats.

The Decision

Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co., 2012 NY Slip Op 51057(U)(App. Term 2d Dept. 2012)

He is a rambunctious soul. They say he is devoted to performing a never ending battery of Beck Inventory Tests and has a mobile Scantron reader because the patients need results. Instant gratification is how business is performed nowadays. His patients need physical therapy and are engaged with his form of therapy. The Appellate Term generally disfavors him, but he beat back Geico. Fear not, it was not on the merits. Mr. Five Boro took a page out of Mercury’s 2010 play book. He figured it worked then; why should it not work now?

“Plaintiff argues on appeal, as it did in the Civil Court, that the peer review reports defendant submitted in support of its cross motion for summary judgment were not in admissible form. We agree, as the peer review reports were affirmed by a psychologist, which is not permissible pursuant to CPLR 2106 (see Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145, 2012 NY Slip Op 50151 ; High Quality Med., P.C. v. Mercury Ins. Co., 29 Misc 3d 132, 2010 NY Slip Op 51900 ). We note that, although one of the peer review reports contained a notary public’s stamp and signature, it did not include an attestation that the psychologist had appeared before the notary public and been duly sworn”

I tip my hat to Mr. Five Boro on this one.

The Legal Framework: Who Could Affirm Under CPLR 2106

CPLR 2106 is the statute that lets certain professionals skip the notary. As it read when this case was decided, it permitted attorneys, physicians, osteopaths, and dentists (when not parties to the action) to serve an affirmation — a statement affirmed to be true under the penalties of perjury — with the same force as a sworn affidavit. The list was exclusive. A psychologist, chiropractor, or acupuncturist was not on it, so a psychologist’s “affirmation” was simply an unsworn statement.

That left GEICO’s psychologist one route to admissibility: a true affidavit — appear before a notary, take an oath, and have the jurat say so. One report carried a notary’s stamp and signature, but without an attestation that the psychologist appeared and was duly sworn, the stamp proved nothing — the same defect that doomed the provider’s papers in New Millennium Psychological Services, here turned against the carrier.

Why This Matters in No-Fault Litigation

A no-fault insurer defending on lack of medical necessity carries the initial burden on summary judgment of producing an admissible peer review report setting forth a factual basis and medical rationale for the denial. If the report is not in admissible form, the defense fails at the threshold — as here, where the provider prevailed without anyone deciding whether the battery of Beck inventories was necessary.

The decision also illustrates how form-of-proof objections cut both ways in this field. Providers’ opposing affidavits get bounced for missing attestations; carriers’ peer reviews get bounced for unauthorized affirmations. Whoever reads the other side’s papers more carefully wins the procedural skirmish. The playbook the plaintiff borrowed — High Quality Med. v Mercury (2010) and Eagle Surgical v Progressive (2012) — was built on exactly this kind of close reading, and the firm’s peer review hub collects the larger body of admissibility and medical-necessity case law, alongside the substantive requirements discussed in medical necessity and peer review practice.

The statutory landscape has since changed. Effective January 1, 2024, the Legislature amended CPLR 2106 to permit any person to affirm the truth of a statement under penalty of perjury, wherever located, eliminating the old professional list. For motions made under current law, a psychologist’s affirmation in proper statutory form is now permissible. But the amendment did not repeal the underlying discipline: an affirmation must still track the statutory language, and a purported affidavit still needs a real jurat. The notary-stamp-without-attestation defect in this case would fail today for the same reason it failed in 2012.

Practice Pointers

Match the form of proof to the affiant — and to the date. For papers governed by the pre-2024 statute, only attorneys, physicians, osteopaths, and dentists could affirm. Under the amended CPLR 2106, anyone may affirm, but the affirmation must contain the prescribed penalty-of-perjury language.

Never rely on a notary stamp alone. The jurat must recite that the affiant personally appeared and was duly sworn. A signature and stamp without that recital is the precise defect flagged here and in New Millennium.

Raise admissibility objections early and on the record. The plaintiff here preserved the CPLR 2106 argument in the Civil Court and renewed it on appeal. An objection raised for the first time on appeal risks waiver.

Carriers: audit peer review packets before filing. A meritorious medical-necessity defense is worthless if the report cannot be considered. The fix — a properly sworn report or a compliant affirmation — costs nothing before filing and everything after.

Frequently Asked Questions

Can a psychologist affirm a peer review report in New York?

Today, yes: CPLR 2106 was amended effective January 1, 2024 to allow any person to affirm a statement under penalty of perjury. When Five Boro v GEICO was decided in 2012, the statute was limited to attorneys, physicians, osteopaths, and dentists, so a psychologist’s affirmation was inadmissible.

What happens if a peer review report is not in admissible form?

The insurer cannot use it to carry its summary judgment burden on a lack-of-medical-necessity defense. As in this case, the motion fails on procedural grounds without any ruling on whether the treatment was actually necessary.

What must a jurat say for a document to count as an affidavit?

It must attest that the affiant personally appeared before the notary and was duly sworn. A notary public’s stamp and signature, standing alone, do not establish that an oath was administered — and the document remains unsworn.

Related Resources

• When Insurance Defense Goes Wrong: Progressive’s Procedural Failures in Peer Review
• Peer hearsay and electronic signatures
• An affidavit really is not an affidavit
• The minimum that an affidavit must contain
• Peer review cluster hub
• Medical necessity and peer review requirements
• New York No-Fault Insurance Law
• Browse the firm’s Legal Encyclopedia for more no-fault admissibility topics
• No-Fault Defense practice