The trap called 2106

Understanding CPLR 2106 Restrictions on Professional Corporation Principals

New York No-Fault Insurance Law litigation requires medical providers to submit properly executed affidavits or affirmations when opposing summary judgment motions. However, a technical procedural trap under CPLR 2106 can invalidate an entire opposition when professional corporation principals execute affirmations instead of affidavits. This seemingly minor distinction between affirmations and affidavits can determine whether a court considers the provider’s evidence at all, making it a critical issue for medical practice litigation.

CPLR 2106 permits attorneys to execute affirmations in lieu of affidavits, but this privilege does not extend to parties in the litigation or their principals. When a medical professional who owns or controls a professional corporation plaintiff attempts to submit an affirmation supporting the corporation’s case, courts will strike the affirmation as improper, potentially leaving the plaintiff without any admissible evidence to oppose summary judgment.

Case Background

High Quality Med., P.C. v Mercury Ins. Co., 2010 NY Slip Op 51900(U)(App. Term 2d Dept. 2010)

The defendant insurer moved for summary judgment dismissing the plaintiff medical provider’s no-fault claim. In opposition, the plaintiff submitted an affirmation executed by Dr. Nihamin, whom the defendant asserted was the plaintiff’s principal. The Civil Court initially found that the defendant failed to prove Dr. Nihamin’s status as principal, but on appeal, the Appellate Term examined the claim form that plaintiff itself had submitted to the defendant, which identified Dr. Nihamin as the principal.

Based on this documentary evidence establishing Dr. Nihamin’s status as a principal of the plaintiff professional corporation, the Appellate Term held that the affirmation violated CPLR 2106 and should not have been considered.

Jason Tenenbaum’s Analysis:

This is the fourth time I think someone got hit by Mercury – I meant me – on this issue.

“In opposition to the motion, plaintiff submitted an affirmation executed by its principal, Dr. Nihamin. In its reply papers, defendant objected to said affirmation on the ground that the affirmation failed to comply with CPLR 2106. Although the Civil Court found that defendant had failed to prove that Dr. Nihamin was plaintiff’s principal, the claim form submitted to defendant by plaintiff identified Dr. Nihamin as plaintiff’s principal. As a result, the submission of Dr. Nihamin’s affirmation was improper because Dr. Nihamin is a principal of plaintiff [*2]professional corporation, which is a party to the action (see CPLR 2106; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 ; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131, 2006 NY Slip Op 51055 ; see also Pisacreta v Minniti, 265 AD2d 540 ). Since the Civil Court should not have considered any facts set forth, or exhibits referred to, in said affirmation (see Pisacreta, 265 AD2d 540), plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 ).”

To answer the question at NFP, when in doubt between using an “affirmation” or”affidavit”, you should choose an “affidavit”.

Legal Significance of the CPLR 2106 Prohibition

The Appellate Term’s strict application of CPLR 2106 demonstrates that courts will not overlook procedural defects in the form of sworn testimony, even when the substance of the testimony is relevant and truthful. The distinction between affirmations and affidavits is not merely technical—it reflects the statutory privilege afforded to attorneys to affirm rather than swear under oath. When non-attorneys, including physicians who are parties or principals of party entities, attempt to use affirmations, they exceed the scope of CPLR 2106.

The consequences of violating CPLR 2106 are severe. Courts will not merely strike the offending affirmation while considering other evidence; instead, any facts set forth or exhibits referenced in the improper affirmation become inadmissible. This means that even if the plaintiff attaches relevant documents to the affirmation, those exhibits cannot be considered because they were not properly authenticated through admissible testimony.

The holding also establishes that parties can prove principal status through the plaintiff’s own claim submissions. Even if defendants lack internal corporate documents showing ownership structure, the names and titles listed on claim forms submitted to insurers can establish that an affirmation signatory is a principal, triggering the CPLR 2106 prohibition.

Practical Implications for Attorneys and Litigants

Medical providers and their attorneys must exercise extreme caution when deciding who should execute affidavits or affirmations in support of litigation. The safest approach, as Jason Tenenbaum recommends, is always to use affidavits rather than affirmations when the signatory is a physician associated with the plaintiff practice. Even if the physician is merely an employed provider rather than an owner, using an affidavit eliminates any risk of CPLR 2106 challenges.

For attorneys representing medical practices, proper procedure requires determining the corporate structure before filing opposition papers. If a physician owns any interest in the plaintiff professional corporation or serves in an executive capacity, that physician must execute an affidavit, not an affirmation. The attorney representing the practice can execute affirmations citing to exhibits and legal authority, but factual assertions about the claim must come through properly executed affidavits from non-attorney parties.

When defendants identify a CPLR 2106 violation, they should object promptly in reply papers and request that the court disregard the improper affirmation entirely, including any exhibits referenced therein. This procedural objection can be outcome-determinative when the plaintiff relies solely on the physician’s affirmation to raise factual issues precluding summary judgment.

Related Articles

• Understanding the CPLR 2106 trap that catches medical practice owners
• Previous analysis of 2106 compliance issues
• How renewal may correct improper CPLR 2106 affirmations
• Why evidence form defects cannot be cured in supplemental opposition
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2010 post discussing CPLR 2106 affirmation requirements for professional corporation principals, there may have been amendments to the Civil Practice Law and Rules or changes in judicial interpretation of when principals may execute affirmations in litigation involving their professional corporations. Practitioners should verify current CPLR 2106 provisions and recent appellate decisions regarding affirmation requirements for professional corporation principals in no-fault insurance litigation.