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The CPLR 2106 Trap: Why Medical Practice Owners Must Avoid This Critical Procedural Error
In the complex world of New York no-fault litigation, medical providers face numerous procedural pitfalls that can result in the complete dismissal of otherwise valid claims. One of the most common and devastating mistakes occurs when practice owners attempt to submit affirmations on behalf of their medical practices without understanding the strict limitations imposed by CPLR 2106.
At Jason Tenenbaum New York Law, we represent medical providers throughout Long Island, Nassau County, Suffolk County, and the New York City metropolitan area who have fallen victim to these procedural traps. Our extensive experience with no-fault litigation helps ensure that your practice avoids these costly mistakes while maximizing your chances of recovering the compensation owed for legitimate medical services.
Understanding CPLR 2106 and Its Impact on Medical Practices
Civil Practice Law and Rules (CPLR) Section 2106 governs the use of affirmations in New York civil litigation. This seemingly technical procedural rule has profound implications for medical practices seeking to recover no-fault benefits from insurance companies.
Under CPLR 2106, an affirmation is a sworn statement made by someone with personal knowledge of the facts, used as an alternative to an affidavit. However, there are strict limitations on who can submit affirmations in litigation, particularly when it comes to parties to the lawsuit or their principals.
The Fundamental Problem: When Practice Owners Are Parties
The core issue arises when medical practice owners attempt to submit affirmations on behalf of their practices in litigation. When a professional corporation or medical practice is a party to a lawsuit, and the owner/principal of that practice attempts to submit an affirmation, courts will typically reject this evidence as improper under CPLR 2106.
This creates a significant obstacle for smaller medical practices where the owner is also the primary treating physician and may be the person with the most direct knowledge of the patient’s treatment and the medical necessity of the services provided.
Case Study: Doshi Diagnostic Imaging Services Falls Into the Trap
Another owner of a medical facility, who improperly used the affirmation device, succumbed to Defendant’s summary judgment motion based upon the medical necessity defense.
Doshi Diagnostic Imaging Servs., P.C. v Mercury Ins. Group, 2010 NY Slip Op 50384(U)(App. Term 2d Dept. 2010)
“In opposition to defendant’s motion, plaintiff submitted an affirmation executed by Dr. Leena Doshi, who described herself as the “owner and medical director of plaintiff.” Defendant objected to the submission of said affirmation in its reply papers, citing CPLR 2106. Since Dr. Doshi was a principal of plaintiff professional corporation, a party to the action, the submission of her affirmation was improper, and the Civil Court should not have considered any facts set forth in said affirmation (see CPLR 2106; St. Vincent Med. Care, P.C. v Mercury Cas. Co., 23 Misc 3d 135, 2009 NY Slip Op 50810 ; see also Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 ; Pisacreta v Minniti, 265 AD2d 540 ; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131, 2006 NY Slip Op 51055 ).”
The Consequences of This Mistake
In the Doshi case, the consequences were severe. Because the practice owner’s affirmation was deemed improper, the court could not consider any of the facts contained within it. This left the practice without adequate evidence to oppose the insurance company’s summary judgment motion, resulting in dismissal of the case and loss of all potential recovery.
This outcome demonstrates how a seemingly minor procedural error can completely derail an otherwise meritorious case. The medical services may have been entirely appropriate and medically necessary, but the procedural mistake prevented the practice from proving these facts in court.
The Legal Foundation: Why Courts Reject Party Affirmations
The restriction on party affirmations serves several important purposes in New York civil procedure:
Preventing Self-Serving Testimony
Courts are inherently skeptical of self-serving testimony from parties who have a direct financial interest in the outcome of litigation. By prohibiting parties from submitting affirmations on their own behalf, CPLR 2106 helps ensure that evidence comes from more neutral sources.
Maintaining Evidentiary Standards
The rule helps maintain consistent evidentiary standards by requiring that affirmations come from individuals who can provide disinterested testimony about the facts at issue.
Encouraging Proper Discovery
By limiting who can submit affirmations, the rule encourages parties to engage in proper discovery and obtain evidence from appropriate sources rather than relying solely on their own statements.
The Broader Pattern: Similar Cases and Consistent Rulings
The Doshi case is not an isolated incident. New York courts have consistently applied CPLR 2106 to reject affirmations from practice owners and principals. The court in Doshi cited several similar cases:
St. Vincent Medical Care v. Mercury Casualty Co.
This 2009 Appellate Term decision established a clear precedent that affirmations from principals of plaintiff professional corporations are improper under CPLR 2106.
Samuel & Weininger v. Belovin & Franzblau
This 2004 Appellate Division case further confirmed the principle that parties cannot submit affirmations on their own behalf, even when they may have relevant knowledge.
Richard M. Gordon & Associates v. Rascio
Another Appellate Term decision that reinforced the strict application of CPLR 2106 to professional corporations and their principals.
This consistent line of cases demonstrates that courts will not make exceptions to CPLR 2106, regardless of whether the party affirmation might contain relevant or truthful information.
Common Scenarios Where Medical Practices Fall Into the CPLR 2106 Trap
Solo Practitioners and Small Practices
Solo practitioners and small practices are particularly vulnerable to this trap because the owner-physician may be the only person with detailed knowledge of the patient’s treatment and the medical necessity of services provided.
Summary Judgment Motions
Insurance companies frequently file summary judgment motions challenging medical necessity. Medical practices often respond by having their owner-physician submit an affirmation explaining why the treatment was necessary, inadvertently violating CPLR 2106.
Emergency Response Situations
When facing tight deadlines for legal responses, practices may hastily submit affirmations from their owners without consulting experienced counsel about the procedural requirements.
Cost-Cutting Measures
Some practices attempt to avoid the cost of obtaining expert medical testimony by having their own physicians submit affirmations, not realizing this creates a CPLR 2106 violation.
Strategies for Avoiding the CPLR 2106 Trap
Medical practices can take several steps to avoid falling into this procedural trap:
Use Independent Medical Experts
Instead of relying on practice owners, obtain affirmations from independent medical experts who can review the treatment records and opine on medical necessity.
Employee Physician Affirmations
If the practice employs physicians who are not owners or principals, these employee physicians may be able to submit proper affirmations about patient treatment and medical necessity.
Treating Physician Affirmations
When the treating physician is not an owner or principal of the practice, their affirmation may be acceptable under CPLR 2106.
Comprehensive Discovery
Engage in thorough discovery to obtain admissions from insurance companies about the appropriateness of treatment, reducing reliance on affirmations altogether.
The Role of Experienced Legal Counsel
The complexity of CPLR 2106 and its application to medical practice litigation underscores the importance of experienced legal representation. At Jason Tenenbaum New York Law, we understand these procedural requirements and help our clients navigate them successfully.
Pre-Litigation Planning
We work with medical practices from the beginning to ensure that proper documentation and potential expert witnesses are identified before litigation becomes necessary.
Strategic Case Development
Our team develops litigation strategies that comply with CPLR 2106 while still providing strong evidence of medical necessity and proper treatment.
Expert Witness Network
We maintain relationships with qualified medical experts who can provide the necessary affirmations and testimony to support our clients’ cases.
The Financial Impact of CPLR 2106 Violations
The financial consequences of falling into the CPLR 2106 trap can be devastating for medical practices:
Complete Loss of Recovery
As demonstrated in the Doshi case, improper affirmations can result in summary judgment for insurance companies, meaning the practice recovers nothing for legitimate medical services.
Legal Fees and Costs
Even unsuccessful litigation generates significant legal fees and costs that must be absorbed by the practice.
Opportunity Cost
Time and resources spent on failed litigation could have been used more productively in providing patient care or pursuing other recovery options.
Precedential Effect
Losses due to procedural errors can establish negative precedents that affect future cases involving the same practice.
Long Island and NYC Medical Practice Considerations
Medical practices in Nassau County, Suffolk County, and the New York City area face unique challenges in no-fault litigation:
High Volume of Cases
The high population density and traffic volume in the New York metropolitan area result in numerous car accidents and corresponding no-fault claims, increasing the likelihood of litigation.
Experienced Defense Counsel
Insurance companies often employ experienced defense attorneys who are well-versed in procedural traps like CPLR 2106 and actively seek to exploit these mistakes.
Court Familiarity
Local courts are very familiar with these procedural requirements and consistently apply them, making it unlikely that practices can obtain relief for procedural violations.
Best Practices for Medical Providers
To protect your practice from CPLR 2106 violations, consider implementing these best practices:
Early Legal Consultation
Consult with experienced no-fault litigation attorneys before responding to any summary judgment motion or substantial legal challenge from an insurance company.
Staff Training
Ensure that practice staff understand the limitations on who can submit affirmations and when professional legal assistance is required.
Documentation Systems
Maintain comprehensive documentation systems that can support expert testimony from independent medical professionals.
Professional Networks
Develop relationships with other medical professionals who could potentially serve as expert witnesses when needed.
Frequently Asked Questions
Q: Can any employee of my medical practice submit an affirmation?
A: Not necessarily. The employee must have personal knowledge of the relevant facts and cannot be a principal or owner of the practice. Additionally, they must be qualified to opine on the specific issues at hand.
Q: What if I’m both the owner and the only treating physician?
A: This is a challenging situation that requires careful legal strategy. You may need to obtain an independent medical expert to review the case and provide the necessary affirmation.
Q: Can I avoid this problem by having someone else sign the affirmation for me?
A: No. The person signing the affirmation must have personal knowledge of the facts. Having someone else sign without personal knowledge would be inappropriate and potentially fraudulent.
Q: Does this rule apply to all types of legal proceedings?
A: CPLR 2106 applies broadly to civil litigation in New York. While there may be some limited exceptions, medical practices should assume the rule applies unless specifically advised otherwise by counsel.
Take Action to Protect Your Practice
Don’t let procedural traps like CPLR 2106 derail your legitimate no-fault claims. The stakes are too high, and the consequences too severe, to risk making these costly mistakes.
If your medical practice is facing challenges with no-fault insurance claims, or if you’ve received notice of a summary judgment motion from an insurance company, don’t attempt to handle the situation without experienced legal representation.
Contact Jason Tenenbaum New York Law today at 516-750-0595 for a comprehensive consultation about your no-fault litigation needs. We serve medical providers throughout Long Island, including Nassau and Suffolk Counties, as well as all five boroughs of New York City.
Our experienced team knows how to navigate the complex procedural requirements of New York no-fault litigation while building strong cases that maximize your chances of recovery. Don’t let technical mistakes cost you the compensation your practice deserves for providing legitimate medical services.
Remember, at Jason Tenenbaum New York Law, we understand the unique challenges facing medical providers in today’s healthcare environment. Let us protect your practice from procedural pitfalls while fighting aggressively for the compensation you’ve earned.
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- How peer hearsay and electronic signatures affect procedural compliance
- Why plaintiffs fail to rebut insurance carrier medical utilization reports
- Building strong opposition to medical necessity summary judgment motions
- New York No-Fault Insurance Law
Legal Update (February 2026): CPLR 2106 requirements and procedural standards for affirmations in no-fault litigation may have been modified through court rule amendments or judicial interpretations since this post’s publication in 2010. Additionally, insurance regulations governing medical provider documentation and procedural requirements for no-fault claims submissions have undergone multiple revisions over the past sixteen years. Practitioners should verify current CPLR provisions and consult recent case law regarding affirmation requirements for medical practice owners in no-fault proceedings.
