Renewal Under Certain Circumstances May Be Granted to Correct an Improper Affirmation: A Comprehensive Guide to CPLR 2106 Requirements

Key Takeaway

Learn how CPLR 2106 affirmation defects can be corrected through renewal motions in NY litigation. Expert guide for Long Island attorneys on procedural requirements and remedies.

Understanding CPLR 2106 Affirmation Requirements in New York Practice

In the complex world of New York litigation, procedural requirements can make or break a case. Among these requirements, the proper format of affirmations under Civil Practice Law and Rules (CPLR) Section 2106 stands as a critical yet often misunderstood aspect of practice. For attorneys serving Long Island and New York City clients, mastering these requirements is essential to avoid potentially devastating procedural defaults.

The intricacies of affirmation requirements become particularly important when dealing with expert witness submissions, medical reports, and other professional testimony that forms the backbone of many civil cases.

The Original Analysis: A Foundation for Understanding

What happens if you draft an affirmation that is missing the magical “2106” language and the defect is properly objected to? You lose.

Can you move to renew? As we learn in Arkin v Resnick 2009 NY Slip Op 08980 (2d Dept. 2009), the answer is a qualified “yes”.

“The motion papers included a document by their medical expert, Dr. Alan Mensch, that was labeled as an “affirmation,” but was prefaced with a statement that he had been “duly sworn.” However, the document did not have either a jurat or a statement pursuant to CPLR 2106 that Dr. Mensch affirmed the statement to be true under the penalties of perjury. By order dated December 30, 2007, the Supreme Court denied the motion on the ground that the affirmation did not comply with CPLR 2106 or 2309, and thus, the movants failed to proffer evidence in admissible form. In support of their motion, in effect, for leave to renew, the movants submitted a substantively identical affirmation with the proper language required by CPLR 2106. By order dated June 9, 2008, the court, upon renewal, granted the motion for summary judgment dismissing the complaint as to the movants, and on July 22, 2008, entered judgment thereon. Contrary to the plaintiff’s contention, the Supreme Court did not improvidently exercise its discretion in granting the motion for leave to renew, allowing the movants the opportunity to correct their inadvertent mistake by submitting an identical affirmation in the proper form (see CPLR 2201, 2221; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 391; Acosta v Rubin, 2 AD3d 657, 658; DeLeonardis v Brown, 15 AD3d 525, 526; Baluchinsky v General Motors Corp., 248 AD2d 574, 575).”

I am not sure we would have the same result if a chiropractor improperly affirmed a document and, following an adverse result, the…

CPLR 2106: The Foundation of Proper Affirmations

CPLR 2106 serves as the cornerstone for affirmations in New York practice, providing an alternative to sworn testimony for certain categories of professionals. The statute requires specific language that many practitioners take for granted, leading to costly errors that can derail otherwise meritorious cases.

The Essential Elements

A proper CPLR 2106 affirmation must contain three critical components:

Clear identification of the affiant and their professional qualifications
An explicit statement that the affirmation is made under penalties of perjury
Proper execution within New York State or in accordance with applicable law

The absence of any of these elements can render an otherwise valid expert opinion inadmissible, potentially dooming a case to dismissal.

Regional Perspectives: Second Department’s Approach

The Arkin decision demonstrates the Second Department’s generally pragmatic approach to procedural errors, particularly when the error appears to be inadvertent and easily correctable. This perspective reflects the department’s jurisdiction over Long Island, Brooklyn, Queens, Staten Island, and several upstate counties, where busy practices often grapple with voluminous caseloads.

Distinguishing Inadvertent Errors from Systematic Deficiencies

The key to the Arkin court’s willingness to grant renewal lay in characterizing Dr. Mensch’s error as “inadvertent.” This distinction becomes crucial for practitioners seeking similar relief. Courts are more willing to excuse isolated mistakes than systematic failures to comply with procedural requirements.

The Renewal Standard: CPLR 2221(e)

Under CPLR 2221(e), renewal motions serve a specific purpose: to address matters of fact or law that arose after the original motion was decided, or to present facts or arguments that were not previously considered by the court. In the context of improper affirmations, renewal typically involves correcting the procedural defect while maintaining the substantive content.

Requirements for Successful Renewal

Courts consider several factors when evaluating renewal motions based on corrected affirmations:

Substantive Identity: The corrected affirmation must be substantially identical to the original
Procedural Correction Only: The defect must be purely technical, not substantive
Good Faith: The original error must appear inadvertent rather than deliberate
Timeliness: The renewal motion must be filed promptly after discovering the defect

Practical Implications for Long Island and NYC Practitioners

The Arkin decision offers both hope and caution for practitioners in the metropolitan New York area. While it demonstrates that courts may allow correction of technical defects, it also underscores the importance of getting affirmations right the first time.

Best Practices for CPLR 2106 Compliance

Template Development: Create standardized templates that include all required language for different types of professionals. This reduces the risk of omitting critical elements.

Quality Control Systems: Implement multi-stage review processes for all expert submissions, ensuring that both attorneys and staff check for CPLR compliance.

Professional Education: Educate expert witnesses about affirmation requirements during initial case discussions, preventing confusion between sworn statements and affirmations.

Documentation: Maintain detailed records of the affirmation process, including communications with experts about technical requirements.

The Broader Context: Medical and Expert Evidence in New York

CPLR 2106 affirmations are particularly crucial in personal injury practice, where medical expert testimony often determines case outcomes. For clients throughout Long Island and New York City dealing with injuries from accidents, medical malpractice, or other incidents, proper expert testimony can mean the difference between recovery and dismissal.

Types of Cases Most Affected

Personal Injury Claims: Medical experts must properly affirm their opinions regarding causation and prognosis
Medical Malpractice: Healthcare professionals providing expert testimony face strict affirmation requirements
Products Liability: Engineering and scientific experts must comply with CPLR 2106 when offering technical opinions
Construction Accidents: Safety experts and engineers frequently provide affirmed testimony

Comparing Professional Categories

The original analysis raises an important question about whether different professional categories might receive different treatment regarding renewal applications. While the Arkin court allowed renewal for a medical doctor’s defective affirmation, would the same courtesy extend to other professionals?

Medical Professionals vs. Other Experts

Physicians and Surgeons: Generally receive favorable treatment due to the technical nature of their work and the critical importance of medical testimony in civil cases.

Mental Health Professionals: Psychologists, psychiatrists, and social workers typically receive similar treatment to medical doctors.

Chiropractors and Alternative Practitioners: May face greater scrutiny, particularly in courts that view their testimony with skepticism.

Engineering and Technical Experts: Usually receive favorable treatment when their errors appear genuinely inadvertent.

Frequently Asked Questions

Q: What exactly must be included in a CPLR 2106 affirmation?
A: The affirmation must state that it is made under penalties of perjury, identify the affiant and their qualifications, and be properly executed within New York or according to applicable law.

Q: Can I fix a defective affirmation by filing an amended motion?
A: Generally, no. Once a motion is decided, you typically need to seek renewal rather than amendment. The procedural requirements differ significantly.

Q: How quickly must I act after discovering an affirmation defect?
A: Courts expect prompt action. Delays in seeking renewal can be viewed as evidence that the original error was not truly inadvertent or that the correction lacks urgency.

Q: Does it matter which court my case is in?
A: Yes. Different departments and even individual judges may have varying approaches to renewal applications. Local practice knowledge is invaluable.

Q: What if my expert refuses to correct the affirmation?
A: This creates a serious problem that may require finding a new expert. Courts are unlikely to excuse defects when the expert appears unwilling to comply with procedural requirements.

Strategic Considerations for Practitioners

The Arkin decision provides valuable guidance for developing litigation strategies that minimize affirmation-related risks while maximizing opportunities for corrective action when problems arise.

Preventive Measures

Early Case Assessment: Identify potential affirmation issues during initial case evaluation, allowing time for proper preparation.

Expert Selection: Choose experts who understand and appreciate the importance of proper procedural compliance.

Staff Training: Ensure that all staff members involved in case preparation understand CPLR 2106 requirements and common pitfalls.

Opposing Counsel Relations: Maintain professional relationships that may facilitate resolution of technical defects without the need for formal motion practice.

The Future of Affirmation Practice in New York

As technology continues to reshape legal practice, affirmation requirements are likely to evolve. Electronic signatures, remote notarization, and digital document management all present new challenges for maintaining CPLR 2106 compliance.

Emerging Trends

Digital Authentication: Courts are increasingly accepting electronic affirmations that meet statutory requirements
Remote Expert Testimony: Video depositions and virtual court appearances may affect affirmation procedures
Automated Quality Control: Technology-assisted review systems may help prevent common affirmation errors
Standardized Forms: Court systems may develop standardized affirmation forms to reduce compliance errors

Conclusion

The Arkin decision represents a pragmatic approach to the inevitable procedural errors that occur in busy litigation practices. For attorneys serving clients throughout Long Island and New York City, understanding both the strict requirements of CPLR 2106 and the potential for corrective action through renewal motions is essential.

The key lessons from Arkin extend beyond mere technical compliance. They reflect broader principles about the balance between procedural rigor and substantive justice, the importance of good faith in litigation practice, and the courts’ recognition that technical perfection, while important, should not always triumph over substantive merit.

Whether you’re handling a personal injury case, medical malpractice claim, or commercial dispute, proper attention to affirmation requirements can preserve your client’s right to be heard on the merits. When mistakes occur, swift and appropriate corrective action may save cases that might otherwise be lost to procedural default.

If you’re facing challenges with expert testimony, affirmation requirements, or need assistance with complex procedural issues in your case, professional guidance is essential. The stakes are often too high to navigate these technical waters alone.

Call 516-750-0595 for experienced legal representation that understands both the technical requirements of New York practice and the strategic importance of preserving your case for decision on the merits.

This analysis is provided for informational purposes only and does not constitute legal advice. Each case presents unique circumstances that require individual evaluation.

Legal Update (February 2026): Since this 2009 analysis of CPLR 2106 affirmation requirements, there may have been amendments to procedural rules governing expert witness affirmations, updates to court interpretations of renewal standards under CPLR 2221, or modifications to the specific language requirements for professional affirmations. Practitioners should verify current CPLR provisions and recent appellate decisions regarding defective affirmations and renewal motions, as procedural requirements in this area have been subject to ongoing judicial refinement and potential legislative updates.

Filed under: 2106 and 2309 Procedural Issues Renew and reargue

Renewal Under Certain Circumstances May Be Granted to Correct an Improper Affirmation: A Comprehensive Guide to CPLR 2106 Requirements