Key Takeaway
Crotona Heights v Mercury: Jason's 2010 affirmation objection, the claim-specific result and why the former CPLR 2106 restriction is historical.
This article is part of our ongoing 2106 and 2309 coverage, with 195 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.
The affirmation objection that worked in 2010
Crotona Heights Medical v Mercury Insurance Co., 29 Misc 3d 137(A), was decided November 19, 2010, by the Appellate Term, Second Department.
The provider opposed a medical-necessity motion with an affirmation from its principal. The insurer objected under the version of CPLR 2106 then in force.
The court held that the principal’s affirmation was improper because the professional corporation was a party. It should not have been considered as evidence opposing the motion.
That was a ruling under the former statute. It is not the current eligibility rule for affirmations.
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The result was claim-specific
The insurer’s peer reviews supplied a factual basis and medical rationale for several challenged services. The defective opposition did not create an admissible factual issue on those claims.
The court granted dismissal of the second, third, fifth and eighth causes of action. The sixth was different: the insurer’s peer reviews did not address its services, so the insurer had not shifted the burden.
The distinction prevents an overstated lesson. A defect in opposition does not automatically repair a failure in the moving party’s proof.
Jason’s original account — November 27, 2010
Jason described this as a recurring issue in his appellate work:
This was the fifth case where I prevailed on this discreet and hypertechnical issue.
I believe this is the final appellate case I have perfected involving this issue.
The phrasing is preserved from his original note. It establishes what he reported about his experience, not a prediction that the objection would remain available after legislative change.
The current statute is different
Current CPLR 2106 permits a statement by any person, wherever made, if it satisfies the statute’s affirmation requirements and does not fall within an exception.
The former party-status and professional restrictions should not be presented as current bars. The previous generic update saying the rule remained unchanged since 2010 was incorrect.
The Loucks historical note and amendment timeline explain the 2024 expansion and the current text’s 2025 revision. They also distinguish eligibility from the sufficiency of an expert’s opinion.
Jason’s 2016 Penal Law verification commentary shows the same pre-amendment concern from another angle. Its call for broader affirmation eligibility is now a historical observation.
What remains useful about the case?
The enduring reading exercise is to separate the moving proof, the opposition’s form and the relief available on each claim. The obsolete signer restriction should not be carried forward with that exercise.
For current no-fault defense motion practice, inspect the actual statutory wording and the record. The Legal Encyclopedia provides wider procedural navigation.
For review of a current file, request a Free Case Review.
Last reviewed: September 2026 — editorial source check against Crotona Heights and current CPLR 2106. Original publication date retained. The former signer restriction is historical.
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.
195 published articles in 2106 and 2309
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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.
