Putting the Cart Before the Horse: When an Affidavit Is Notarized Before It Is Signed

Technical Defects in Affidavits Can Derail Insurance Defense Strategies

In no-fault insurance litigation, insurance companies frequently rely on affidavits to establish defenses, particularly when claiming that an injured party failed to appear for scheduled independent medical examinations (IMEs). However, even seemingly minor technical defects in these sworn statements can prove fatal to an insurer’s case, as demonstrated in a recent Appellate Term decision that highlights the importance of proper notarization procedures.

The case serves as a reminder that courts scrutinize affidavits carefully, and defective notarization can undermine even strong substantive arguments. When procedural requirements aren’t met, the entire foundation of a legal argument may crumble, regardless of the underlying merits.

Key Takeaways

• The carrier’s IME no-show motion failed because the affidavit for the second no-show showed on its face that it was notarized before it was signed.
• An affidavit is proof only because it is sworn before the notary — a jurat that predates the signature suggests the oath never properly occurred.
• Facial defects like this are visible to the court without any extrinsic evidence, making them an easy basis to deny summary judgment.
• Movants should proofread the dates and sequence on every jurat before filing; opponents should check them first.

The Decision

Jason Tenenbaum’s Analysis:

New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 2016 NY Slip Op 51527(U)(App. Term 2d Dept, 2016)

“Defendant’s motion was properly denied, as defendant failed to establish, as a matter of law, that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations. Among other things, the affidavit attesting to the second failure to appear indicates, on its face, that it had been notarized before it was signed (see e.g. 97 NY Jur 2d, Summary Judgment, Etc. § 47 ).”

This is an interesting one. The notarization occurred before the signature? I am guessing the affiant’s signature was an original and the notary signature was a photocopy? How was this determined?

Why the Order of Signing and Notarizing Matters

An affidavit derives its evidentiary force from the oath. The affiant appears before a notary, swears to the truth of the contents, and signs; the notary then completes the jurat attesting that the statement was “sworn to before me” on that date. If the document shows the notarization happened before the affiant signed, the natural inference is that no oath was actually administered over the signed statement — and an unsworn statement is not competent evidence on a summary judgment motion under CPLR 3212, which requires proof in admissible form.

That is what makes this defect different from quibbles over formatting. A misdated jurat or out-of-sequence notarization is apparent from the face of the papers. The court does not need a hearing or extrinsic proof; it can simply decline to credit the affidavit, and with it the movant’s prima facie case.

In the no-fault IME no-show context, the stakes are concrete. The carrier must prove two failures to appear at duly scheduled IMEs, ordinarily through affidavits from the medical professional or office staff who were present. Knock out the affidavit covering the second no-show — as happened here — and the condition-precedent defense collapses regardless of what actually happened in the waiting room.

Why This Matters for Carriers and Their Vendors

IME no-show affidavits are typically generated in volume by IME vendors and the examining doctors’ offices. Volume is exactly where sequence errors creep in: pre-stamped notary blocks, signature pages circulated separately from the body, photocopied notary signatures paired with original affiant signatures. The author’s question in the original post — was the notary’s signature a photocopy while the affiant’s was original? — points at the production-line reality behind these documents.

For defense counsel, the lesson is that the affidavit package must be reviewed as evidence, not paperwork, before it goes into a motion. For plaintiffs’ counsel, the case is an invitation: examine every jurat for dates, sequence, original signatures, and notary commission details before drafting opposition on the merits. Sometimes the cheapest argument is the one printed on the face of your adversary’s own exhibit.

Practice Pointers

• Check that the date next to the affiant’s signature and the date in the jurat line up, and that nothing indicates the notary acted first.
• Use original signatures throughout. Mixing originals and photocopies on a single affidavit invites exactly the inference drawn here.
• If a defect is caught after filing, consider whether a second affidavit to clarify is allowed in your procedural posture — but prevention beats rehabilitation.
• Remember that courts have repeatedly held an affidavit really is not an affidavit when the oath requirements are not satisfied.

Related Resources

• IME No-Shows in New York No-Fault Insurance Cases
• Mailing affidavit is wrong
• The failure to assert why the signature was stamped will not invalidate an affirmation
• Affidavit issues once again invade Hertz’ motion practice
• Defective notarization
• The firm’s Legal Encyclopedia
• No-Fault Defense practice

Frequently Asked Questions

Is an affidavit valid if it was notarized before it was signed?

Courts treat the defect as disqualifying when it appears on the face of the document. In New Way Acupuncture v New York Central Mutual, the Appellate Term affirmed denial of the insurer’s summary judgment motion because the second IME no-show affidavit indicated on its face that it had been notarized before it was signed.

Why do IME no-show motions depend so heavily on affidavits?

Because the carrier must prove, in admissible form, that the assignor failed to appear at two duly scheduled independent medical examinations. That proof normally comes from sworn statements by people with personal knowledge — the examining doctor or office staff — so any defect in the oath or notarization undermines the entire defense.

What should I check when reviewing an opponent’s affidavit?

Compare the signature date and the jurat date, confirm both signatures appear original rather than photocopied, verify the notary’s commission information, and confirm the affiant claims personal knowledge of the facts. Facial defects can defeat a motion without ever reaching the merits.