The trap called 2106

The ownership restriction described in this November 2010 note is historical. It should not be used as a current instruction that a medical practice’s principal must always submit a notarized affidavit instead of an affirmation.

CPLR 2106 now permits a qualifying affirmation by any person, wherever made, subject to its requirements and exceptions. The any-person expansion took effect January 1, 2024; Matter of Sweet v Fonvil applies that amendment. The historical case below remains useful because it also identified a separate failure to answer the insurer’s medical evidence.

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.

High Quality Medical: two defects, not just one

High Quality Medical, P.C. v Mercury Insurance Co., 29 Misc 3d 132(A), 2010 NY Slip Op 51900(U), was decided November 8, 2010, by the Appellate Term for the Second, Eleventh and Thirteenth Judicial Districts.

The appeal concerned the fifth cause of action for assigned no-fault benefits. The insurer had supplied proof of timely denial and lack of medical necessity. The provider relied on an affirmation from Dr. Nihamin, whom its own claim form identified as a principal.

Applying the then-existing rule, the court rejected that affirmation. It also held that, even if the affirmation were considered, it did not meaningfully address the conclusions in the insurer’s IME report. The court reversed the appealed portion of the order and granted dismissal of that cause of action.

The second ground is easy to miss if the case is reduced to a story about notarization. Correct form would not, on the court’s reasoning, have supplied the missing substantive rebuttal.

Jason Tenenbaum’s original November 2010 analysis

The following commentary and excerpt are preserved. The recommendation about choosing an affidavit was made under the rule discussed in 2010; it is not repeated here as a present-day ownership restriction.

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 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”.

What the amended rule changes

Ownership alone is no longer the categorical barrier described in the old commentary. A practice principal, like another person, can use an affirmation that satisfies the applicable current rule. This does not mean an unsigned report or an informal declaration automatically qualifies.

The current text requires subscription and affirmation under penalties of perjury in substantially the specified form. It expressly excepts depositions, oaths of office and certain oaths before a specified person other than a notary, and it preserves the separate acknowledgment requirement for matrimonial agreements. Check the document actually being prepared rather than treating the rule as elimination of every oath or acknowledgment requirement.

See the Doshi medical-practice-owner case for a related application of the old restriction and a current preparation checklist.

What it does not change

CPLR 3212(b) still addresses the proof supporting summary judgment. Permission to affirm does not create personal knowledge, establish expertise, authenticate every attachment or turn a conclusory disagreement into a factual rebuttal.

When reviewing opposition to a medical-necessity motion, separate the signer’s factual knowledge from any expert opinion. Identify the challenged services and the conclusions in the opposing report. Explain the relevant records and reasoning rather than relying on a general statement that treatment was necessary.

The medical-journal evidence discussion addresses another distinct question: how an expert may rely on literature. A proper affirmation does not make all of that literature independently admissible.

Read the procedural stage correctly

A pleading decision asks a different question from a summary-judgment record. Compare the Genovese contract and fraud pleading note, where one cause of action survived dismissal without establishing that the plaintiff had proved the underlying entitlement.

Keep the claim forms, denials, expert reports, relied-on records and filing chronology together for counsel. Neither an affidavit nor an affirmation guarantees success. If a deadline or defective filing is already in issue, obtain advice about the particular record; do not assume a new form can be substituted after the fact as of right.

For help with a disputed motion, request a Free Case Review.

Connect to the Encyclopedia

• Topic hub: Affirmations & Affidavits (CPLR 2106)
• CPLR 2106: Expert Report Requirements (Complete Guide)
• 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
• Failure to comply with 2106 is somewhat excusable
• EUO no-show: attorney affirmation and time lapse held insufficient (2025)

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Last reviewed: September 2026. The original 2010 analysis and case excerpt are preserved and labeled historical. The current-rule discussion and independent substantive ground in High Quality Medical have been clarified using the linked sources.