2106 again…

This April 2009 note uses Jason Tenenbaum’s informal categories of appeals to discuss a concrete no-fault decision. The categories are the author’s way of describing litigation strategy, not three statutory routes of appeal or a prediction of success.

The case also applied an ownership restriction under the former CPLR 2106. That restriction should not be used as current filing advice: today’s statute permits qualifying affirmations by any person, subject to its form requirements and exceptions.

Legal Update (September 2026): CPLR 2106 was amended effective January 1, 2024 (L. 2023, ch. 559) to permit an affirmation under penalty of perjury by any person, wherever made — see Matter of Sweet v Fonvil, 2024 NY Slip Op 02654 — so the professional and ownership restrictions this note turns on no longer control. Current rule: CPLR 2106 after the 2024 amendment.

Jason’s original framework

The following three paragraphs preserve the historical commentary. References to other lines of cases describe the author’s perspective at that time, not a current treatment-history certification.

In the world of appellate practice, there are three types of appeals you can take up. The first type of appeal involves the instance where you know you are going to lose, but there is some overriding interest which compels you to file and perfect the appeal. I think this is usually relegated to the criminal side of the arena or issues involving large monetary awards that need to be challenged. These are the shot in the dark appeals. In order to win this type of appeal, spin around three times, throw a dart, and see if you can hit the bulls eye.

The second type of appeal you could take up is one where you believe the law should be a certain way, and there is case law or other sources of law out there, which if favorably construed, could support your position. This is also the category of appeal where I think if you repeat yourself a few thousand times, you might get heard. This is probably where the Dan Medical line of cases came from. I also believe that this is how the “AB v. Liberty” line of cases and the “old” Appellate Term, Fogel line of cases eventually died a well deserved death at the Appellate Division.

And then there is the third type of appeal. This is the one where the law is established, the facts are properly presented to the lower court and, for whatever reason, the lower court chooses to depart from settled precedent.

What St. Vincent actually decided

St. Vincent Medical Care, P.C. v Mercury Casualty Co., 23 Misc 3d 135(A), was decided April 24, 2009, by the Appellate Term for the Second, Eleventh and Thirteenth Judicial Districts.

The insurer appealed the denial of partial summary judgment on the first, second, third, fifth, sixth and seventh causes of action. The fourth cause was not part of that requested appellate relief. The court reversed the appealed portion and dismissed the six identified causes; it did not announce a disposition of every possible claim in the action.

The opinion addresses three distinct layers of the insurer’s proof:

• The claims representative described personal knowledge of business practices sufficient to lay a business-record foundation for the attached documents.
• The representative described mailing practices designed to ensure that denial forms were properly addressed and mailed.
• The affirmed IME and peer-review reports supplied the medical-necessity showing for the challenged services.

These were record-specific findings. They did not abolish business-record objections or establish that an insurer’s denial is admissible merely because it exists. CPLR 4518(a) still supplies the business-record framework. Mailing, record foundation and the medical opinion should be checked separately.

The original recollection—and its limits

Jason’s recollection of the billing and arguments is retained below. The approximate amounts are his recollection, not amounts independently established by the published opinion. The available earlier text ends mid-sentence; no missing continuation has been invented.

In this case, Defendant moved for summary judgment based upon a prima facie showing that the contested services lacked medical necessity. There was approximately $6,000 in disputed billing, involving all types of modalities of treatment. The fourth cause of action, which was not disputed, involved a $71.49 office visit, if memory serves correct.

Plaintiff cross-moved and opposed the underlying summary judgment. Plaintiff, in opposition to Defendant’s motion argued that: (Issue #1) a business record predicate was not set forth in Defendant’s moving papers; (Issue #2) the denials were not timely and properly mailed; and (Issue #3) the services were medically necessary. The Appellate Term, for the first time, commented on Issue #1, finding that Defendant’s papers set forth a business record predicate for the admission of the denials into evidence. Those who have followed

Why the former affirmation objection mattered

The provider opposed the motion with an affirmation from its principal, Dr. Zakharov. The insurer objected in reply. Under the rule then applied, the court did not consider that principal’s affirmation and found no admissible opposition raising an issue of fact.

The old signer restriction is historical. The any-person expansion took effect January 1, 2024, as discussed in Matter of Sweet v Fonvil. Current eligibility does not dispense with subscription, the required affirmation language, personal knowledge or the foundation for an expert opinion.

Compare the Radiology Today note, where the court found an independent substantive failure even if the disputed affirmation were considered. The Pugsley discussion illustrates the opposite side: an insurer’s defective moving proof did not entitle the provider to win its own cross motion.

Appeal deadlines are not measured simply from the decision date

An earlier FAQ on this page described a general 30-day deadline from the judgment or order itself. CPLR 5513(a) instead ties the ordinary appeal-as-of-right period to service of a copy of the judgment or order with written notice of entry, including the appellant’s own service. Subdivision (d) addresses additional time for specified service methods.

That is a starting point, not a deadline calculation for a particular file. Identify the court, appeal route, documents served, method of service and any applicable exception with counsel. This note does not promise that an appeal will finish within a fixed number of months or recommend a meritless appeal merely to demonstrate effort.

For a defective motion paper discovered after decision, see the Arkin renewal discussion. Renewal and an appeal are different procedures; do not assume one protects the time for the other. For review of a current record, request a Free Case Review.

Connect to the Encyclopedia

• Topic hub: Affirmations & Affidavits (CPLR 2106)
• CPLR 2106: Expert Report Requirements (Complete Guide)
• Understanding CPLR 2106 compliance requirements for medical practice owners
• CPLR 2309 notarization requirements in New York litigation
• Strategic approaches to written opposition and procedural defects
• CPLR 2106 affirmation renewal requirements and corrections
• New York No-Fault Insurance Law
• EUO no-show: attorney affirmation and time lapse held insufficient (2025)
• Failure to comply with 2106 is somewhat excusable

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Last reviewed: September 2026. The original strategic commentary and incomplete recollection are preserved as historical material. The case disposition, current affirmation rule and appeal-deadline explanation have been clarified using primary sources.