Loucks v Klimek, 2013 NY Slip Op 05110 (4th Dept. 2013)
“Finally, we conclude that the court properly determined that plaintiff substantially complied with the requirement of establishing a meritorious claim by submitting an affirmation, rather than an affidavit, of a Florida expert who was not “authorized by law to practice” in New York (CPLR 2106; see Sandoro v Andzel, 307 AD2d 706, 707-708). The affirmation would have been sufficient to show merit had it been in proper evidentiary form. Thus, the court properly permitted plaintiff an opportunity to supply an affidavit from the Florida expert within 30 days of notice of entry of its order.”
Here, it is presumed that the expert if they were licensed in New York would be able to utilize CPLR 2106. This differs from a chiropractor or psychologist who as a matter of New York cannot utilize the affirmation device.
