The CPLR 2106 Trap: Why Medical Practice Owners Must Avoid This Critical Procedural Error

This page’s original title describes a procedural trap under the rule applied in 2010. The law has changed: being a medical practice owner is not, by itself, a current bar to using an affirmation under CPLR 2106.

The current statute permits qualifying affirmations by any person, wherever made, subject to its form requirements and express exceptions. The historical Doshi decision remains below, but its old ownership restriction should not be mistaken for today’s filing instructions.

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.

The 2010 Doshi decision

Doshi Diagnostic Imaging Services, P.C. v Mercury Insurance Group, 26 Misc 3d 142(A), 2010 NY Slip Op 50384(U), was decided March 8, 2010, by the Appellate Term for the Second, Eleventh and Thirteenth Judicial Districts.

The insurer moved for summary judgment on lack of medical necessity. It submitted a claims representative’s affidavit and its examining doctor’s affirmed IME report. Civil Court found the provider’s opposition raised an issue of fact, but the appellate court disagreed.

The provider’s affirmation came from Dr. Leena Doshi, who identified herself as its owner and medical director. Under the rule then applied to a principal of a party professional corporation, the affirmation was improper. Without admissible opposition raising an issue of fact, the provider lost the motion and the complaint was dismissed.

The opinion does not establish that the treatment was meritorious but lost solely through an arbitrary technicality. It records the insurer’s prima facie showing and the insufficiency of the provider’s admissible opposition.

The original case note

The original introductory observation and quoted passage follow, preserved as the historical record rather than current advice about who may affirm.

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 ).”

From the old restriction to the current rule

The any-person expansion took effect January 1, 2024. In Matter of Sweet v Fonvil, 227 AD3d 849 (2d Dept 2024), the court applied the amended rule when considering verification of an election petition. This was not a medical-necessity ruling, but it illustrates why the old categories of permitted signers cannot simply be carried forward.

The 2025 amendment record explains the later clarification of the documents for which affirmations may be used. Consult the current CPLR 2106 text, which specifies both the form and exceptions; do not use a saved 2010 template or assume all notarization and acknowledgment requirements disappeared.

An affirmation must be subscribed and affirmed by the person making it. The statute’s model includes the New York penalties-of-perjury language and acknowledgment that the document may be filed in court. It separately addresses matters stated on information and belief. That language does not replace the knowledge or evidentiary foundation required for the particular submission.

A practical review checklist for a medical practice

• Who knows which facts? Identify the person who can explain treatment, billing, mailing or recordkeeping. A title such as owner or employee does not itself supply knowledge of every event.
• Is expert reasoning required? Identify the issue and the professional basis for the opinion. An independent expert may be useful for substantive reasons, but ownership alone no longer creates the old categorical affirmation bar.
• Does the response address the motion? Match the opposing report’s actual conclusions to the records and reasoning offered in response. Avoid a generic statement that all services were necessary.
• Are the form and exhibits appropriate? Check the current affirmation language, signature, supporting record foundation and any document-specific exception.
• Are the dates and procedural options clear? Track the motion schedule and service requirements. A defect discovered late does not carry an automatic right to repair the record.

The related High Quality Medical note makes the form/substance distinction especially clear: the court found a deficient rebuttal even assuming the disputed affirmation could be considered. CPLR 3212(b) supplies the summary-judgment proof framework.

Do not replace one overstatement with another

The earlier version advised that owners must obtain another physician’s affirmation and attributed the restriction to a requirement for neutral or disinterested testimony. Those were not sound current instructions. A witness’s interest in the litigation, qualification to give an opinion, knowledge of the facts and choice of affirmation form are separate questions.

The amendment does not guarantee recovery of disputed bills after a car accident, and it does not establish that an insurer’s medical-necessity defense lacks merit. For review of a particular claim or motion, request a Free Case Review.

Connect to the Encyclopedia

• Topic hub: Affirmations & Affidavits (CPLR 2106)
• CPLR 2106: Expert Report Requirements (Complete Guide)
• Understanding medical necessity challenges in Continental Medical case analysis
• 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
• EUO no-show: attorney affirmation and time lapse held insufficient (2025)
• Improper affirmation cost the plaintiff its case: Radiology Today (2012)

Last reviewed: September 2026. The original Doshi observation and quoted passage are preserved. The obsolete ownership restriction, generic procedural-warning copy and related FAQ answers have been replaced with a sourced distinction between the historical rule and current practice.