Key Takeaway
Court allows Florida expert's affirmation despite CPLR 2106 non-compliance, highlighting differences in out-of-state practitioner requirements versus in-state licensing restrictions.
Understanding CPLR 2106 Compliance: When Courts Allow Second Chances
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.
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.
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.
Key Takeaway
Courts distinguish between out-of-state practitioners who could theoretically use CPLR 2106 if licensed in New York versus professionals like chiropractors or psychologists who are categorically prohibited from making affirmations under New York law. This nuanced approach allows for procedural flexibility while maintaining evidentiary standards.
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.
