Expert Qualifications and CPLR 2106 Compliance in NY Medical Malpractice Cases

Last reviewed: September 2026.

Legal Update (September 2026): Current CPLR 2106 permits covered affirmations by any person and is no longer limited to specified professionals; the current affirmation guide distinguishes signature form from expert qualifications.

In Lopez v Gramuglia, 133 AD3d 424 (1st Dept 2015), the defendant was a podiatrist. His expert, Dr. Robbins, was an orthopedist. The First Department accepted Robbins’s qualifications to address podiatric care on that record and affirmed dismissal of the malpractice claim.

An unpreserved licensure objection

Robbins described his medical credentials without expressly using the licensure wording challenged on appeal. The plaintiff had not made that objection before the motion court. The appellate court therefore treated it as unpreserved.

That is not a holding that the words “duly licensed” must appear in every current affirmation. CPLR 2106 now permits covered affirmations by any person. That procedural permission does not make every signer a qualified medical expert.

The opinion still needs a factual foundation

The defendant’s medical opinion addressed the treatment record. The plaintiff’s opposing expert relied on alleged risk factors that, apart from light smoking, lacked record support. That was the substantive failure identified by the court.

When comparing an expert’s specialty with the disputed treatment, examine the qualifications relevant to the particular opinion. Lopez did not hold that an expert may opine on every field of medicine, or that a signature-form objection replaces a response to the medical reasoning.

Jason’s original comment

Jason’s original shorthand follows. Lopez accepted this expert’s qualifications on the record before it; the opinion does not qualify every physician to address every specialty.

Familiar lesson here. An expert can generally opine about all areas of medicine. The other lesson here is that a 2106 objection needs to be specific.

Frequently Asked Questions

Can an orthopedist testify about podiatric standards of care in New York?

Lopez accepted the orthopedist’s qualifications on its record. Matching specialties is not invariably required, but the expert still needs qualifications relevant to the particular opinion.

What happens if an expert affirmation fails to state ‘duly licensed’ under CPLR 2106?

Lopez did not reach that objection because it was unpreserved. Current CPLR 2106 permits affirmations by any person for covered statements; the case is not a universal present-day licensure-wording rule.

What is CPLR 2106 and why does it matter in New York medical malpractice cases?

It provides an alternative to an affidavit for covered signed statements under New York’s penalties of perjury. Expert qualifications, factual foundation and the sufficiency of the medical opinion remain separate issues.

Must CPLR 2106 objections be raised at the trial court level?

In Lopez, failure to raise the specific licensure-wording objection before the motion court left it unpreserved on appeal. That case-specific result is not a ruling on every possible form defect or appellate exception.

Connect to the Encyclopedia

• CPLR 2106: current affirmation rules and historical affidavit cases
• Ramirez: electronic signature on a physician’s report
• Five Boro: the former professional restriction
• Simanovskiy: proof supporting medical test results
• Watabe: objections to witness affidavits

For review of a particular motion, keep the signed reports, supporting records, objections and court orders together and contact the firm. This historical note is general information, not an assessment of an individual case.