The affidavits were unshakable

Last reviewed: September 2026.

Legal Update (September 2026): This 2013 sworn-affidavit ruling should be read separately from today’s CPLR 2106 unsworn-affirmation procedure, which requires a subscription under penalties of perjury and contains specified exceptions.

In American Transit v Casas Sosa, the insurer obtained defaults against the nonanswering defendants and summary judgment against two answering defendants. One answering defendant opposed the motion. Jason’s original note below records the objections that failed, including a challenge to the form of a sworn affidavit.

Jason’s original note

American Transit Ins. Co. v. Casas Sosa, 2013 NY Slip Op 31588(u)(Singh, J)*My Case*

Plaintiff moved for leave to enter a default against the non-answering Defendants and for summary judgment against the answering Defendant.  Appearing Defendant argued that the affidavits were insufficient.  The Court shot down each of these arguments.

“Defendant, Yager, argues that Plaintiff has failed to provide proof in admissible form sufficient to eliminate all material issues of fact. Yager opines that the ”’affidavit’ of Ms. Hershman is defective and cannot serve to establish that a notice for physical examination was “mailed” because there is no recitation that the statements are made under penalty of perjury.”

“Defendant contends that, because the affirmation of Dr. Winell is undated, it is unclear that it  was executed after the dates of the scheduled physical examinations. Defendant argues that,  because Dr. Winell identified an office procedure and referred to his records and notes, his documentation and his written correspondence to Plaintiff should be in evidence and that without  these documents Plaintiff cannot establish that there are no material issues of fact and the motion should be denied.”

“Defendant’s arguments are without merit. CPLR § 2309(b) provides that “An oath or  affirmation shall be administered in a form calculated to awaken the conscience and impress the  mind of the person taking it in accordance with his religious or ethical beliefs.  “There is no  specific form of oath required in this State” Collins v. AA Trucking Renting Corp., 209 A.D.2d  363 (1 st Dep’t 1994).”

“Ms. Hershman’s affidavit states that she was “duly sworn” and is notarized, with the  notary reciting that the affidavit was “sworn to before me this 23rd day of October, 2012.” As  such, her affidavit meets the requirement that an oath or affirmation be administered in a form  calculated to awaken the conscience, and this Court takes notice of her affidavit.”

“As to the argument that it is unclear as to when Dr. Winell’s affidavit was executed  relative to the scheduled dates of the physical examinations, this argument is unavailing. It is  clear from the use of the past tense in the affidavit that it was executed after the dates of the  scheduled examinations.”

“Regarding the argument that Dr. Winell is relying upon his office procedures, notes mid  records and that these should therefore be produced, this argument is without merit. Dr. Winell  clearly states that his affirmation is based upon personal knowledge. ”

“Yager further contends that Plaintiff did not properly provide Sosa’s attorney with notice  of the physical examinations. However, there is no evidence that Sosa had an attorney at the  time the notices were sent.”  Note the court here places burden on medical provider/ EIP to raise an issue of fact regarding existence of attorney.”

“In conclusion, Plaintiff has provided evidence in admissible form sufficient to eliminate  any question of fact. Plaintiff has shown that Mr. Sosa failed to appear for properly scheduled  medical examinations, a condition president to payment of no-fault benefits to him or his assigns.  Therefore, summary judgment is warranted. Plaintiff has further shown that the summons, complaint, and the present mot on were served upon each of the defendants.”

Sworn affidavit or unsworn affirmation?

The July 12, 2013 trial-court order accepted a notarized affidavit that said the witness was duly sworn and included a jurat. It did not require a separate recital about penalties of perjury. That was an application of the oath requirement in CPLR 2309(b).

A document submitted today as an unsworn affirmation follows a different provision: CPLR 2106, which permits an affirmation subscribed as true under penalties of perjury, subject to its exceptions. Casas Sosa does not dispense with that requirement.

The remaining rulings were record-specific. The doctor’s use of the past tense resolved the objection to the undated affirmation. His stated personal knowledge supported the account of nonattendance. The attorney-notice objection failed because the record did not establish representation when the notices went out. The decision does not approve undated documents generally. It also does not settle what supporting records or notice to counsel a different motion would require.

Connect to the Encyclopedia

Start with the IME no-show case directory.

• Sharp View: insufficient proof of mailing
• Urban Well and Metro 8: IME and EUO witnesses
• Harmonic: the Unitrin coverage analysis
• Village Medical: verification and timely denial after missed IMEs
• Total Chiropractic: late post-claim IME, neither side wins judgment

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