Failure to comply with 2106 is somewhat excusable

Key Takeaways

• Loucks applied the affirmation law in effect in 2013, not today’s CPLR 2106.
• The court allowed time to replace a Florida expert’s defective affirmation with an affidavit.
• The dispute arose during relief from a discovery default; it was not unconditional approval of defective expert submissions.
• CPLR 2106 eligibility expanded in 2024, and the current statute contains a further 2025 revision.
• Form, expert qualifications, evidentiary support and entitlement to relief remain separate questions.

What was the court deciding in 2013?

Loucks v Klimek, 108 AD3d 1037 (4th Dept 2013), was decided July 5, 2013. It arose from a medical-malpractice action affected by unanswered discovery demands.

A conditional preclusion order became absolute after the plaintiff failed to supply responses. The complaint was then struck. The plaintiff later sought to restore the case.

Although the motion was labeled renewal or reargument, the court treated it as a request to vacate a default under CPLR 5015(a)(1). The Fourth Department affirmed the relief granted below.

The affirmation issue was one part of that procedural setting. A reader should not extract it as a freestanding rule that courts always forgive improper expert papers.

Why the Florida expert’s document mattered

The plaintiff needed to establish an excuse for the default and a potentially meritorious claim. Counsel’s documented illness supported the excuse, and the expert’s submission addressed merit.

Under the statute being applied, the Florida expert could not supply the required proof in that affirmation form. The opinion nevertheless found the submission sufficient in substance if properly sworn.

The court allowed an affidavit from the expert within 30 days of notice of entry of its order. It did not erase the defect or announce that form no longer mattered.

The case therefore separates the content needed to show merit from the form required to present that content at the time.

Jason’s original observation — July 7, 2013

The original note focused on the licensing distinction:

Here, it is presumed that the expert if they were licensed in New York would be able to utilize CPLR 2106.

Jason then contrasted professionals who could not use the affirmation device under the law he was discussing. That historical distinction must not be repeated as a present-day prohibition on chiropractors or psychologists.

The note belongs with his earlier Crotona Heights affirmation objection and later Penal Law verification commentary. Those entries show the procedural concerns he was discussing before the statutory expansion.

What changed in 2024 and 2025?

The courts’ implementation notice records January 1, 2024 changes implementing Chapter 559 of the Laws of 2023. The amendment broadened the availability of affirmations in place of affidavits.

The current CPLR 2106 text displays a November 28, 2025 revision. It permits a statement by any person, wherever made, subject to the statutory subscription, affirmation and penalty-of-perjury requirements.

That language is not limited to New York-licensed attorneys or specified health professionals. The old professional categories are not the current eligibility test.

The statute also states limits. Its general permission excludes depositions, oaths of office and oaths required before a specified person other than a notary.

Subdivision (b) preserves the Domestic Relations Law’s requirement that matrimonial agreements be acknowledged in the form of a deed. A general affirmation is not a substitute for every formality in every proceeding.

The current statutory form includes language addressing information and belief. Use the actual applicable text, not an old form copied from a 2013 case note.

What did the amendments not decide?

Permission to use an affirmation does not itself establish an expert’s qualifications, the factual basis of an opinion, or compliance with a discovery order.

Nor does it answer whether a default should be vacated. Loucks involved an excuse, a showing of merit and a discretionary opportunity to cure within a specified period.

The related CPLR 3101(d)(1) discussion concerns expert disclosure. That is another distinct issue: a correctly affirmed report may still raise disclosure or substantive evidentiary questions.

The business-records guide addresses a different foundation problem. Changing the form of a statement does not automatically authenticate the records attached to it.

How to use this historical note now

Read the opinion for its treatment of default relief and the curable form defect. Read the current statute for who may affirm and what wording and exceptions apply.

Keep the two dates visible. A 2013 outcome can remain instructive without becoming a claim that its former licensing restrictions survived the later amendments.

For a current no-fault defense file, identify which document needs proof and why. The Legal Encyclopedia provides wider procedural navigation; this note preserves the before-and-after history.

For review of a current file, request a Free Case Review.

Last reviewed: September 2026 — editorial source check against Loucks, the courts’ 2024 notice and the current CPLR 2106 text. Original publication date retained. No filing form or outcome guarantee is supplied.