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

Arkin v Resnick allowed correction of an inadvertent defect in a medical expert’s affirmation through renewal. It did not create an automatic rescue procedure for every rejected motion, and it did not make the word “inadvertent” a substitute for explaining what happened.

This December 2009 note now separates that historical result from current CPLR 2106. The expansion to qualifying affirmations by any person took effect January 1, 2024—not February 2026. It did not abolish all affidavit, oath or acknowledgment requirements.

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.

What Arkin involved

Arkin v Resnick, 68 AD3d 692, was decided December 1, 2009, by the Appellate Division, Second Department, in a medical malpractice action from Nassau County.

The moving defendants’ expert document mixed forms. It was called an affirmation and said the physician had been duly sworn, but contained neither a jurat nor the CPLR 2106 statement affirming truth under penalties of perjury. The original motion was denied for lack of admissible evidence.

On renewal, the movants supplied a substantively identical affirmation with the proper language. The appellate court upheld the exercise of discretion allowing correction of the inadvertent mistake. Its description of identical substance explains the relief granted on that record; it is not the entire statutory definition of renewal.

Jason’s original analysis

The original discussion follows. Its final chiropractor sentence was already incomplete in the available earlier text; no ending has been supplied. The historical question about a profession excluded from the old rule is not a current restriction on chiropractors.

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…

Renewal and reargument are different requests

CPLR 2221(e) requires a renewal motion to be identified as such. It addresses new facts not offered on the prior motion that would change the determination, or a change in law that would do so, and requires reasonable justification for not previously presenting the facts.

Reargument under subdivision (d) addresses matters of fact or law allegedly overlooked or misapprehended, without adding facts not offered before. Its stated 30-day period runs from service of the order with written notice of entry. A combined motion must identify and support the two forms of relief separately.

Calling a corrected document “new evidence” does not itself establish the renewal requirements. Equally, renewal is not confined to papers whose substantive text is identical: the statute expressly addresses qualifying new facts and changes in law. Counsel must identify the particular ground and why it justifies revisiting the prior determination.

Correct form was not the whole malpractice ruling

Arkin also considered the expert proof on causation. The moving showing was supported by records and testimony; the opposing expert did not address relevant evidence or adequately connect the alleged departure to the injuries. The court affirmed the challenged judgment and order insofar as appealed from.

The procedural correction therefore should not be confused with proof of the underlying medical claim. CPLR 3212(b) separately addresses the evidence supporting summary judgment. The Radiology Today note offers a similar form/substance distinction in a no-fault case.

Current affirmations: use the actual statute, not a slogan

Matter of Sweet v Fonvil discusses the January 1, 2024 any-person expansion. The current statute supplies a model affirmation and document-specific exceptions. Permission to affirm wherever made is not limited to execution in New York.

An earlier expansion of this page said one short perjury sentence discharged the entire foundation requirement. That was too broad. The form must substantially comply with the statute, and the submission still needs the knowledge, qualifications and evidentiary foundation appropriate to its purpose.

An affirmation used instead of an affidavit is not the same thing as a sworn affidavit without an administered oath. Nor has CPLR 2309(c) disappeared. See the Crossbridge and out-of-state oath discussion for that separate distinction.

Preparing a request to correct a filing

Identify the defect, when it was noticed and the exact difference between the original and proposed corrected documents. Preserve both versions. Explain the reason for the original omission without changing the underlying account to manufacture an excuse.

Then identify the order, applicable procedural vehicle, service history and any pending appeal. A renewed motion does not simply erase an adverse decision, and this page does not suggest waiting for a renewal decision before assessing appeal deadlines. The St. Vincent appeal note explains why the notice-of-entry trigger matters.

The prior professional hierarchy—suggesting doctors, mental-health professionals and engineers generally receive favorable treatment while chiropractors receive skepticism—was unsupported and has been removed. Review the actual defect and evidence, not stereotypes about the signer’s occupation.

For review of a personal injury or no-fault defense motion, request a Free Case Review. The Legal Encyclopedia provides wider navigation.

Connect to the Encyclopedia

• Topic hub: Affirmations & Affidavits (CPLR 2106)
• CPLR 2106: Expert Report Requirements (Complete Guide)
• Understanding the CPLR 2106 trap that medical practice owners must avoid
• Granting leave to renew when improper affirmations are submitted instead of affidavits
• CPLR 2309 notarization compliance requirements in New York litigation
• Additional CPLR 2106 affirmation issues and requirements
• New York No-Fault Insurance Law
• CPLR § 2221 Motions to Reargue, Renew, and Vacate: The New York Practitioner’s Guide
• Failure to comply with 2106 is somewhat excusable

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Last reviewed: September 2026. The original Arkin excerpt and incomplete commentary are retained as historical material. Renewal standards, affirmation chronology and overbroad notarization claims have been corrected using the linked authorities.