Failure to comply with 2106 is somewhat excusable

New York’s Civil Practice Law and Rules (CPLR) Section 2106 governs who may make affirmations in legal proceedings. Generally, only attorneys and certain licensed professionals authorized to practice in New York can use affirmations instead of sworn affidavits. However, courts sometimes show flexibility when technical violations occur, particularly regarding out-of-state experts.

CPLR 2106 serves important evidentiary purposes by ensuring that sworn statements submitted in legal proceedings come from individuals subject to New York’s professional oversight and disciplinary mechanisms. Attorneys licensed in New York face potential consequences for making false statements in affirmations, creating incentives for truthfulness and accuracy. The statute reflects legislative judgment that the affirmation process should be limited to professionals whose conduct the state can regulate effectively.

When parties submit expert affirmations from out-of-state practitioners not licensed in New York, courts must balance strict compliance with statutory requirements against the practical realities of obtaining expert opinions from qualified specialists. Medical experts, for example, frequently practice in jurisdictions outside New York but possess expertise relevant to New York litigation. Requiring all such experts to provide sworn affidavits rather than affirmations can create unnecessary procedural obstacles without enhancing the reliability of their opinions.

The Fourth Department’s decision in Loucks v Klimek demonstrates judicial pragmatism in handling procedural missteps. When a Florida expert submitted an affirmation rather than the required affidavit, the court focused on whether the underlying merit could be established despite the improper form. This approach mirrors other instances where New York courts have given plaintiffs second chances to correct procedural deficiencies.

Case Background

The plaintiff in Loucks sought to vacate a default judgment, which requires demonstrating both a reasonable excuse for the default and a meritorious defense or claim. To establish merit, plaintiff submitted an affirmation from a Florida medical expert supporting the plaintiff’s position. The defendant objected to the expert’s affirmation, arguing that CPLR 2106 prohibited its use because the Florida expert was not authorized to practice in New York and therefore could not make affirmations under New York procedural law.

The trial court evaluated whether the defective affirmation satisfied the requirement of establishing a meritorious claim for purposes of vacating the default. Rather than strictly applying CPLR 2106 to exclude the submission entirely, the court examined whether substantial compliance had occurred and whether the deficiency could be cured. This analysis required distinguishing between out-of-state practitioners who could theoretically use CPLR 2106 if licensed in New York versus professionals categorically prohibited from making affirmations under state law.

Jason Tenenbaum’s Analysis

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.

Legal Significance

The Fourth Department’s decision establishes important distinctions within CPLR 2106 jurisprudence by recognizing that out-of-state practitioners occupy a different status than professionals categorically excluded from using affirmations. Medical doctors licensed in other states could use affirmations if they held New York licenses, whereas chiropractors and psychologists remain prohibited from making affirmations regardless of licensing status. This distinction justifies allowing cure of technical violations when out-of-state physicians inadvertently submit affirmations rather than affidavits.

The decision reflects courts’ practical recognition that technical form deficiencies should not defeat substantive rights when the underlying content possesses evidentiary value and the deficiency can be corrected easily. By permitting the plaintiff to submit a properly executed affidavit within thirty days, the court advanced the goal of resolving cases on their merits while maintaining appropriate evidentiary standards. This approach prevents parties from exploiting technical violations to gain unfair procedural advantages.

Practical Implications

For practitioners utilizing out-of-state experts, this decision provides reassurance that technical CPLR 2106 violations may be curable when promptly corrected. However, attorneys should not rely on judicial leniency as a substitute for proper procedure. Initial submissions should comply with CPLR requirements by obtaining sworn affidavits from out-of-state experts rather than affirmations. When violations occur inadvertently, practitioners should move expeditiously to cure deficiencies by obtaining properly executed affidavits.

The decision also highlights the importance of understanding which professionals can use affirmations under New York law. While physicians licensed in other states can correct form deficiencies, chiropractors and psychologists face absolute prohibitions regardless of circumstances. Attorneys must recognize these distinctions when preparing expert submissions and ensure compliance with applicable requirements based on the expert’s professional status.

Legal Update (February 2026): Since this 2013 analysis of CPLR 2106 compliance standards, there may have been developments in how courts interpret “substantial compliance” with affirmation requirements, particularly regarding out-of-state expert submissions and procedural cure opportunities. Practitioners should verify current judicial interpretations and any amendments to CPLR 2106 or related procedural rules governing affirmations versus affidavits in expert submissions.

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