Key Takeaway
Simanovskiy rejected computerized test results lacking personal-knowledge proof. Read the holding, Perl's later timing rule and the historical limits.
This article is part of our ongoing 2106 and 2309 coverage, with 310 published articles analyzing 2106 and 2309 issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Last reviewed: September 2026.
Legal Update (September 2026): Perl v Meher later rejected a universal requirement of contemporaneous numerical range-of-motion measurements; it did not dispense with causation or admissible proof.
The quoted decision was Simanovskiy v Barbaro, 72 AD3d 930 (2d Dept 2010). The plaintiffs opposed a serious-injury dismissal motion with Dr. Dudelzak’s reports and computerized range-of-motion tests. The doctor had not quantified the reported limitations, and nobody with personal knowledge had affirmed the computerized results. The court dismissed the complaint; the cross-appeal became academic.
What the case does not establish
The opinion addresses the submitted medical proof. It does not find that computerized testing is clinically necessary or that its cost must be reimbursed. It also does not bar computerized results as a class.
Free Consultation · No Fee Unless We Win
Does this apply to your situation?
Every case is different. Get a free, confidential case review from an experienced attorney who can tell you exactly where you stand.
The timing discussion needs a later qualification. In Perl v Meher, 18 NY3d 208 (2011), the Court of Appeals rejected a blanket requirement of contemporaneous numerical measurements. Later measurements could establish severity where causation was supported. Early medical evidence remained important to connecting the condition with the accident.
Reviewing a test report today
Identify who performed or knows the testing, what the recorded findings show and how the report supports the claimed limitation. CPLR 2106 now offers a signed affirmation for covered statements, but changing the signature block does not create personal knowledge.
The serious-injury statute has also changed since this note. Laws of 2026, chapter 58, Part EE removed the 90/180 category for actions and proceedings commenced on or after May 26, 2026. The historical case addressed limitation-of-use categories; it should not serve as a complete checklist of current statutory categories.
Jason’s original comment
This was Jason’s original observation in 2010. Its medical-necessity conclusion goes beyond the court’s holding: usefulness in litigation does not itself establish clinical necessity or entitlement to reimbursement.
The computerized range of motion testing is medically necessary because it is instrumental in meeting the serious injury threshold of the Insurance Law. It was not admissible, however, because it was not properly affirmed.
Connect to the Encyclopedia
- CPLR 2106: current affirmation rules and historical affidavit cases
- Ramirez: admissible signature and serious-injury proof
- Five Boro: medical-report form on an insurer’s motion
- Lopez: factual support for an expert opinion
- Furtow: oath form and the underlying factual account
For review of a particular motion, keep the signed reports, supporting records, objections and court orders together and contact the firm. This historical note is general information, not an assessment of an individual case.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
CPLR 2106 and 2309: Affirmation & Oath Requirements
CPLR 2106 governs who may submit an affirmation in lieu of an affidavit in New York courts, while CPLR 2309 addresses the requirements for oaths, affidavits, and the certification of out-of-state documents. These seemingly technical provisions have significant practical impact — an improperly executed affirmation or affidavit can render an entire summary judgment motion defective. These articles analyze the formal requirements, common defects, and court decisions that practitioners must navigate when preparing sworn statements.
310 published articles in 2106 and 2309
Keep Reading
More 2106 and 2309 Analysis
How to Talk to a Judge in New York: What to Say, What to Avoid, and How to Present Yourself
Address the judge as 'Your Honor,' stand when you speak, wait to be recognized, and keep answers short and honest. A Long Island trial lawyer explains.
Feb 24, 2026
CPLR § 2106 Amendment Eliminates Affidavit Notarization Requirement: What This Means for New York Litigation
New York's CPLR 2106 permits affirmations in place of many sworn documents. See the 2024 and 2025 changes, exceptions, and historical case notes.
Feb 18, 2026
DJ denial reversed: A misspelling can be excused, and notice to the attorney is enough
DJ denial reversed: Court excuses IME notice misspelling, rules proper service to attorney sufficient for no-fault insurance claim coverage denial.
Nov 12, 2013
CPLR § 4518 Business Records: The New York Practitioner's Guide
CPLR 4518 business records in New York: foundation, incorporation, police-report hearsay, electronic exhibits and linked case histories.
Feb 21, 2011
CPLR 2309 Compliance: Navigating Notarization Requirements in New York Litigation
Navigate CPLR 2309 notarization requirements in NY litigation. Expert analysis of jurisdictional splits and compliance strategies. Free consultation -
Jan 15, 2010
PL 210.45 verification is a sufficient affidavit
Gonzalez v Ayala: conflicting verified witness statements defeated defendants’ 2016 motion. Jason’s affirmation commentary is separated from current CPLR 2106.
Sep 16, 2016Was this article helpful?
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a 2106 and 2309 matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
