Improper Use of an Affirmation Cost Plaintiff Its Case: Understanding CPLR 2106 Requirements in New York

The ownership restriction described in this 2012 decision is historical. A physician is not barred from using a qualifying affirmation under current CPLR 2106 merely because the physician owns the practice that is a party. This page’s original title is retained, but its former FAQ saying such an owner generally cannot affirm is no longer current guidance.

The case has a separate lesson that should not be lost: the provider’s response did not meaningfully answer the insurer’s peer review even if the disputed affirmation were considered.

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.

Radiology Today: form and substance both mattered

Radiology Today, P.C. v Mercury Insurance Co., 34 Misc 3d 145(A), was decided January 24, 2012, by the Appellate Term for the Second, Eleventh and Thirteenth Judicial Districts.

The insurer moved for summary judgment in an assigned no-fault benefits action. Civil Court treated medical necessity as the sole remaining trial issue. On appeal, the insurer challenged the denial of its motion.

The insurer had submitted an affirmed peer-review report supplying a factual basis and medical rationale for its conclusion. The provider’s opposing physician affirmation came from its owner, as identified on the claim forms. The court accepted the insurer’s objection to that affirmation under the former rule.

But the opinion went further: even assuming the affirmation could be considered, it did not meaningfully refer to or rebut the peer review’s conclusions. With the other entitlement findings unchallenged, the court granted the insurer’s motion dismissing the complaint. The decision did not find the treatment meritorious and then deny payment solely for a technicality.

The original excerpts and Jason’s observation

The two passages and Jason’s brief observation are preserved below. His recollection of his own involvement remains expressed with the same uncertainty; it has not been turned into a verified firm-result claim.

Radiology Today, P.C. v Mercury Ins. Co., 2012 NY Slip Op 50148(U)(App. Term 2d Dept. 2012)

“In opposition to the motion, plaintiff submitted a doctor’s affirmation and the claim forms, which identified the doctor as plaintiff’s owner. In its reply papers, defendant objected to the affirmation on the ground that it failed to comply with CPLR 2106. Plaintiff’s submission of the doctor’s affirmation was improper because the doctor is a principal of plaintiff professional corporation, which is a party to the action (see CPLR 2106; Slavenburg Corp. v Opus Apparel, 53 NY2d 799 ; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 ; High Quality Med., P.C. v Mercury Ins. Co., 29 Misc 3d 132, 2010 NY Slip Op 51900 ). Thus, 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 ).”

“Even if the affirmation of plaintiff’s doctor could properly be considered, plaintiff nevertheless failed to raise an issue of fact, as the doctor’s affirmation did not meaningfully refer to, let alone rebut, the conclusions set forth in defendant’s peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136, 2009 NY Slip Op 51495 ).”

I am pretty sure this was my appeal.

What current CPLR 2106 changes

CPLR 2106 now permits qualifying affirmations by any person, wherever made. Matter of Sweet v Fonvil identifies the any-person expansion’s January 1, 2024 effective date.

The current statute specifies subscription and affirmation under New York penalties of perjury in substantially the stated form. It lists exceptions, including depositions and certain oaths, and preserves the separate acknowledgment requirement for matrimonial agreements. This is not a rule that every sworn document or acknowledgment has become unnecessary.

Nor was the old ownership restriction a general requirement that all medical testimony be neutral or supplied by an independent physician. Ownership, credibility, expert qualifications, factual knowledge and the form of the statement are different questions. The prior expansion’s broad explanations about preventing self-serving testimony did not accurately describe current filing eligibility.

The Pugsley note supplies a useful comparison: the insurer there relied on a report from a professional outside the former statutory categories. The amended rule changes that eligibility question, not the need for accurate credentials and competent evidence.

What a substantive response needs to address

Start with the actual report being challenged. Which services does it address? What factual assumptions does it use? What medical rationale supports its conclusion? Identify the records and reasoning offered in response rather than relying on a general statement that all treatment was necessary.

CPLR 3212(b) addresses supporting proof for summary judgment. A properly executed affirmation does not supply omitted facts or transform a conclusory opinion into a reasoned response. Conversely, a defect in opposition does not excuse a moving party’s failure to meet its initial burden.

The St. Vincent case note separates the insurer’s business-record, mailing and medical proof. The related High Quality Medical discussion concerns another alternative substantive ground in the old ownership cases.

If a defect has already been raised

Keep the original submitted version, the objection, the scheduling orders and the relevant reports together. Whether a correction may be considered depends on the actual procedural posture; do not quietly replace a document or assume that adding an independent signer guarantees admission.

The Arkin renewal note describes discretionary permission to correct an inadvertent form error. It is not an automatic right to introduce a different medical theory after an adverse ruling.

For review of a personal injury or medical-evidence dispute, request a Free Case Review.

Connect to the Encyclopedia

• Topic hub: Affirmations & Affidavits (CPLR 2106)
• CPLR 2106: Expert Report Requirements (Complete Guide)
• More plaintiffs fail to rebut an insurance carrier’s medical utilization report
• The CPLR 2106 Trap: Why Medical Practice Owners Must Avoid This Critical Procedural Error
• Why Conclusory Affidavits Fail: Building Strong Opposition to Medical Necessity Summary Judgment Motions
• The Convergence of Medical Malpractice and No-Fault Litigation: Understanding Cross-Practice Legal Principles
• New York No-Fault Insurance Law
• EUO no-show: attorney affirmation and time lapse held insufficient (2025)
• Failure to comply with 2106 is somewhat excusable

Last reviewed: September 2026. The current-rule explanation and FAQs replace obsolete ownership instructions. Historical quotations and Jason’s qualified recollection are preserved; the independent substantive ground is now prominent.