Key Takeaway
Court ruling on CPLR 2106 affirmations and prima facie requirements for no-fault insurance claims, including chiropractor limitations and 30-day payment rules.
This article is part of our ongoing 2106 and 2309 coverage, with 266 published articles analyzing 2106 and 2309 issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
New York’s no-fault insurance litigation requires strict adherence to procedural requirements, particularly when healthcare providers seek summary judgment. Two critical issues often determine the outcome of these cases: the proper use of CPLR 2106 affirmations and the establishment of a prima facie case showing that claims were not timely paid or denied. The intersection of these requirements creates complex procedural challenges for chiropractors and other healthcare providers attempting to collect on unpaid claims.
CPLR 2106 permits licensed physicians to submit affirmations in lieu of affidavits in legal proceedings, eliminating the need for notarization. However, the statute’s language specifically limits this privilege to physicians, creating frequent disputes about whether chiropractors, acupuncturists, and other healthcare professionals may utilize this procedural shortcut. The distinction matters because improperly denominated affirmations can render otherwise valid evidence inadmissible.
Simultaneously, providers seeking summary judgment must establish a prima facie case that their claims are overdue under the 30-day payment rule. The evidentiary burden for establishing this prima facie showing varies between New York’s appellate departments, creating inconsistent standards across the state.
Case Background
In Pugsley Chiropractic PLLC v Merchants Preferred Insurance Co., a chiropractic practice sought to recover unpaid no-fault benefits through summary judgment. The plaintiff submitted a report from Dr. Perrie as part of their motion papers. The insurance company challenged both the procedural validity of this report and the sufficiency of plaintiff’s prima facie showing that the claims were overdue.
The case presented two distinct procedural issues that frequently arise in no-fault litigation: whether the submitted expert report complied with CPLR 2106 requirements, and whether the plaintiff had adequately demonstrated non-payment within the regulatory timeframe.
Jason Tenenbaum’s Analysis
Pugsley Chiropractic PLLC v Merchants Preferred Ins. Co., 2016 NY Slip Op 50167(U)(App. Term 1st Dept. 2016)
(1) “The report erroneously identified Dr. Perrie as a licensed “physician” (see Paul-Austin v McPherson, 111 AD3d 610 ), and was denominated as an affirmation purportedly made under the authority of CPLR 2106. However, neither a chiropractor nor an acupuncturist may affirm the contents of a medical report pursuant to CPLR 2106″
This is nothing new,
(2) “Plaintiff’s cross motion for summary judgment was properly denied, since it failed to establish, prima facie, that its claims were overdue, i.e., that its claims were not “denied or paid” within the prescribed 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 507 ).”
Now in the Second Department, prima facie proof on motion for summary judgment requires a demonstration either (A) absence of a timely denial; or (B) affirmative proof disproving the proffered defense.
First Department precedent has maintained the traditional rule that proof that a bill was denied or not denied when more than 30-days elapses from submission with proof of non-payment establishes a prima facie case.
I sense in this case the Court required proof that the bills were unpaid in affidavit form. Yet, a denial would presuppose lack of payment?
Legal Significance
This decision reinforces established precedent on two critical procedural fronts. First, it confirms that CPLR 2106’s affirmation privilege remains exclusively available to licensed physicians. Despite chiropractors holding doctoral degrees and being licensed healthcare providers authorized to diagnose and treat patients, they fall outside the statute’s scope. This distinction has significant practical implications for chiropractic practices, which must ensure their practitioners execute properly notarized affidavits rather than simple affirmations.
Second, the decision highlights the continuing divergence between the First and Second Departments regarding prima facie proof requirements. The First Department’s traditional approach accepts proof of submission plus passage of the 30-day period as sufficient, while the Second Department demands either affirmative proof disproving the defense or direct evidence that no timely denial was issued. This geographic disparity means that identical evidence may succeed in one venue but fail in another.
The court’s apparent requirement for affirmative proof of non-payment raises interesting questions about logical inferences. If an insurer issues a denial, that denial inherently confirms non-payment of the claim. Requiring separate proof of the non-payment therefore seems redundant, yet the court’s decision suggests such proof may be necessary in certain circumstances.
Practical Implications
Healthcare providers, particularly chiropractors and acupuncturists, must exercise caution when preparing motion papers. Any document submitted by a non-physician healthcare provider must be properly notarized as an affidavit. Denominating such documents as affirmations under CPLR 2106 will render them inadmissible, potentially resulting in denial of an otherwise meritorious motion.
When establishing a prima facie case on summary judgment, providers should include explicit affidavit testimony confirming non-payment of the claims at issue. While this may seem logically redundant when proof of denial exists, courts may require such direct evidence. Practitioners should tailor their proof to the requirements of their specific appellate department to maximize their chances of success.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
CPLR 2106 and 2309: Affirmation & Oath Requirements
CPLR 2106 governs who may submit an affirmation in lieu of an affidavit in New York courts, while CPLR 2309 addresses the requirements for oaths, affidavits, and the certification of out-of-state documents. These seemingly technical provisions have significant practical impact — an improperly executed affirmation or affidavit can render an entire summary judgment motion defective. These articles analyze the formal requirements, common defects, and court decisions that practitioners must navigate when preparing sworn statements.
266 published articles in 2106 and 2309
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Frequently Asked Questions
What is the difference between a CPLR 2106 affirmation and a CPLR 2309 affidavit?
A CPLR 2106 affirmation can be signed by an attorney, physician, dentist, or podiatrist without notarization — the affirmant simply affirms under penalty of perjury. A CPLR 2309 affidavit requires a notary public or authorized officer to administer an oath. Using the wrong form can result in a court rejecting the submission.
When must I use a notarized affidavit versus an affirmation in New York?
Licensed attorneys, physicians, dentists, and podiatrists may use unsworn affirmations under CPLR 2106. All other individuals must use notarized affidavits under CPLR 2309. In no-fault litigation, this distinction frequently arises when submitting medical evidence or opposing summary judgment motions.
Can a court reject evidence submitted in the wrong format?
Yes. Courts routinely reject affidavits and affirmations that do not comply with CPLR 2106 or 2309. An improperly sworn document may be treated as a nullity, which can be fatal to a motion for summary judgment or opposition. Proper formatting is a critical procedural requirement in New York practice.
What is a medical necessity denial in no-fault insurance?
A medical necessity denial occurs when the insurer's peer reviewer determines that treatment was not medically necessary based on a review of the patient's medical records. The peer reviewer writes a report explaining why the treatment does not meet the standard of medical necessity. To challenge this denial, the provider or claimant must present medical evidence — typically an affirmation from the treating physician — explaining why the treatment was necessary and rebutting the peer review findings.
How do you challenge a peer review denial?
To overcome a peer review denial, you typically need an affirmation or affidavit from the treating physician that specifically addresses and rebuts the peer reviewer's findings. The treating physician must explain the medical rationale for the treatment, reference the patient's clinical findings, and demonstrate why the peer reviewer's conclusions were incorrect. Generic or conclusory statements are insufficient — the response must be detailed and fact-specific.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a 2106 and 2309 matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
