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

CPLR 2309 and CPLR 2106 both concern the form of statements used in litigation, but they are not interchangeable. Current CPLR 2106 permits qualifying affirmations by any person; CPLR 2309 continues to address administered oaths, including those taken outside New York.

The historical Crossbridge decision illustrates a problem with proof of policy exhaustion. It should not be presented as a general rule that a missing certificate automatically expands insurance coverage beyond the contracted limit.

Legal Update (September 2026): CPLR 2106 was amended effective January 1, 2024 (L. 2023, ch. 559) to permit an affirmation by any person, wherever made — see Matter of Sweet v Fonvil, 2024 NY Slip Op 02654 — which removes most of the pressure that once pushed out-of-state witnesses toward notarized affidavits and CPLR 2309(c) certificates of conformity. CPLR 2309(c) still governs an out-of-state affidavit, as the ‘current statutory distinction’ section explains. Current rule: CPLR 2106 after the 2024 amendment.

What the Crossbridge majority decided

Crossbridge Diagnostic Radiology v Encompass Insurance, 24 Misc 3d 134(A), was decided June 23, 2009, by the Appellate Term for the Second, Eleventh and Thirteenth Judicial Districts. The majority affirmed a judgment awarding the provider a principal sum of $911.99.

The insurer opposed summary judgment by asserting that benefits under the policy had been exhausted. The majority expressly recognized that failure to issue a timely denial did not preclude the exhaustion defense. The problem was the admissible proof supporting that defense on this motion.

The claims representative’s affidavit was executed before a Massachusetts notary and did not comply with CPLR 2309(c); the provider had objected in Civil Court. The attorney’s separate affirmation did not establish personal knowledge of exhaustion. The majority therefore found no probative showing of exhaustion sufficient to defeat the provider’s motion.

These are separate propositions: a defense may remain available as a matter of law, yet the party relying on it must support it with appropriate evidence. The judgment does not establish a general penalty that increases a policy’s coverage limit whenever a filing is defective.

What Justice Golia said in dissent

Justice Golia disagreed with the majority’s treatment of the record. He pointed to materials concerning a Massachusetts policy with an $8,000 PIP limit and a payment history, and would have reversed the judgment and denied the provider’s motion.

That was the dissent’s position, not a majority finding that the policy had in fact been exhausted on admissible proof. The earlier page collapsed the disagreement into a settled statement that the certificate error caused coverage beyond policy limits. The revised account identifies whose reasoning is being described and what the court actually ordered.

The case is useful for reading a majority and dissent together. It is not a present-day statement that every certificate objection succeeds, or that an attorney can establish a payment history simply by referring to it without the necessary basis.

Later guidance: a missing certificate is not automatically fatal

Midfirst Bank v Agho, 121 AD3d 343 (2d Dept 2014), provides later Appellate Division guidance on out-of-state affidavits. The court found the submitted certificate adequate and also explained that absence of a conformity certificate is not, by itself, a fatal defect.

The opinion discusses correction and the ability to disregard defects where no substantial right is prejudiced. It also distinguishes conformity of the oath from authentication of the officer’s authority. These are not reasons to ignore document requirements; they are reasons not to treat every omission as automatic dismissal.

CPLR 2001 supplies a statutory framework for correcting or disregarding certain mistakes and irregularities. The document, objection, prejudice and procedural posture still matter. Midfirst is later guidance on the subject, not a subsequent appellate disposition in Crossbridge itself.

The current statutory distinction

CPLR 2309(c) still addresses oaths and affirmations taken outside the state and the accompanying certification framework. The office administering an oath, its location and the form used must be examined in the actual setting.

By contrast, CPLR 2106 allows a person to subscribe and affirm a qualifying statement under New York penalties of perjury. The any-person expansion took effect January 1, 2024, as discussed in Matter of Sweet v Fonvil. The current text specifies the form and exceptions, including depositions and certain oaths, and preserves matrimonial-agreement acknowledgment requirements.

Using that affirmation procedure where available is different from saying all out-of-state affidavits, oaths or certificates have been abolished. The prior FAQ restricting affirmations to particular New York-licensed professions has been replaced.

Practical preparation: form, knowledge and the underlying records

First identify what the statement must prove. In an exhaustion dispute, that may include the applicable policy provisions and the relevant payment history. Then identify a person with the appropriate knowledge and a basis for explaining the records. An attorney’s permitted affirmation form does not give the attorney personal knowledge of facts they did not establish.

Check the chosen form separately. Is this a qualifying CPLR 2106 affirmation, or an affidavit involving an administered oath? Does an exception or an out-of-state certification issue apply? If a defect has already been raised, preserve the original submission and obtain advice about the available procedure rather than assuming either automatic rejection or an automatic cure.

Compare St. Vincent’s business-record and mailing proof, Pugsley’s separate burdens on cross motions and Arkin’s discretionary renewal ruling. These decisions address different parts of motion practice; none makes document form a substitute for the underlying evidence.

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Connect to the Encyclopedia

• Topic hub: Affirmations & Affidavits (CPLR 2106)
• CPLR 2106: Expert Report Requirements (Complete Guide)
• 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
• CPLR 2309 and out-of-state affidavits: the certificate requirement (2009)
• Death knell to 2309(c)

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Last reviewed: September 2026. The case history is preserved through sourced majority/dissent analysis. The old professional restriction, automatic-defect framing and coverage-limit overstatement have been corrected; the original publication date and page identity remain unchanged.