What do CPLR § 2309 and CPLR § 2106 have in common?

New York’s civil practice rules can challenge even the most experienced attorneys, particularly when it comes to statutes like CPLR § 2309 and CPLR § 2106. These provisions, which govern oaths, affirmations, and affidavits, frequently cause confusion in fields such as no-fault insurance and commercial debt collection. A single misstep can lead to rejected filings or unexpected financial penalties. This post examines the shared pitfalls of these statutes, draws lessons from a notable case, and offers practical advice for compliance.

Decoding CPLR § 2309 and CPLR § 2106

CPLR § 2309 outlines the requirements for oaths and affirmations, with a particular focus on affidavits signed outside New York. Subsection (c) mandates a certificate of conformity for out-of-state affidavits, confirming that the oath aligns with the laws of the state where it was administered. This step verifies the document’s validity for New York courts.

CPLR § 2106, by contrast, permits specific professionals—attorneys, physicians, osteopaths, and dentists licensed in New York—to submit affirmations instead of notarized affidavits. An affirmation requires a signed statement, declared true under penalty of perjury, streamlining the process for these individuals.

Both statutes aim to confirm the authenticity of sworn statements. Yet their technical demands often catch practitioners off guard, leading to procedural errors that courts swiftly penalize.

A Costly Lesson from Crossbridge Diagnostic Radiology

The 2009 case Crossbridge Diagnostic Radiology v. Encompass Ins. (2009 NY Slip Op 51415(U) ) serves as a stark warning. In this no-fault insurance dispute, the defendant insurer claimed that coverage had been exhausted and submitted an affidavit from a claims representative to back its position. The affidavit, however, lacked the certificate of conformity required by CPLR § 2309(c) for out-of-state documents. The plaintiff’s objection led the court to reject the affidavit as inadmissible.

The fallout was significant. Justice Golia’s dissent highlighted that the insurer faced liability beyond the no-fault policy limits, all because of a preventable procedural error. This case illustrates how a minor oversight can spiral into a major setback.

Common Mistakes and Practical Solutions

The Crossbridge case reflects a broader pattern of errors with CPLR § 2309 and CPLR § 2106. Attorneys in high-stakes practice areas often stumble over these statutes’ requirements. Below are frequent missteps and strategies to sidestep them:

1. Overlooking the Certificate of Conformity
   Out-of-state affidavits often arrive without the certificate of conformity mandated by CPLR § 2309(c). Practitioners should verify the document’s origin and secure the certificate, typically available from a notary or court clerk in the relevant state.

2. Misapplying CPLR § 2106 Affirmations
   Only designated professionals can use affirmations, and the statement must include specific language affirming truth under penalty of perjury. Attorneys must confirm the affiant’s eligibility and format the affirmation correctly.

3. Ignoring Potential Objections
   Opposing counsel may seize on non-compliant affidavits or affirmations to challenge their admissibility. Reviewing documents thoroughly before filing helps preempt such attacks.

4. Underestimating Procedural Details
   The statutes’ nuances vary by court and context. Studying these rules or consulting a procedural manual can prevent costly mistakes.

Strategies for Staying Compliant

To handle CPLR § 2309 and CPLR § 2106 effectively, attorneys can adopt several habits:

• Verify Document Sources: For out-of-state affidavits, confirm the oath’s administration and include a certificate of conformity.

• Standardize Affirmations: Develop templates for CPLR § 2106 affirmations to maintain consistency and meet statutory requirements.

• Educate Teams: Train paralegals and associates on these statutes to catch errors early in document preparation.

• Monitor Legal Precedents: Stay informed about cases like Crossbridge to understand how courts apply these rules.

Final Thoughts

CPLR § 2309 and CPLR § 2106 may appear as mere procedural hurdles, but they hold immense power to shape case outcomes. The Crossbridge case demonstrates the high stakes of non-compliance, particularly in no-fault insurance disputes. By mastering these statutes, anticipating challenges, and implementing sound practices, attorneys can safeguard their clients and strengthen their advocacy. Precision in these details separates successful practitioners from those caught off guard by avoidable errors.

Related Articles

• Understanding signature authenticity and correcting form defects in reply procedures
• Single Motion Rule and Statute of Limitations compliance in New York
• How procedural defects can lead to summary judgment against insurers
• Combating litigation delay tactics in no-fault insurance cases
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2009 post, CPLR provisions regarding affidavits, oaths, and affirmations may have been subject to amendments or clarifications through legislative updates or court rule changes. Additionally, electronic filing requirements and remote notarization procedures introduced in recent years may impact compliance with CPLR §§ 2106 and 2309. Practitioners should verify current procedural requirements and any updated certification standards before relying on the specific provisions discussed in this post.