2106 and a prima facie comment

The important correction in this February 2016 case note is whose report was defective: Dr. Perrie’s IME report belonged to the insurer’s motion, not the provider’s cross motion. The insurer lost its summary-judgment win on appeal, but the provider did not obtain summary judgment either.

The professional-eligibility restriction applied in the opinion is also historical. Current CPLR 2106 permits qualifying affirmations by any person, subject to statutory form requirements and exceptions. A chiropractor or acupuncturist is not categorically excluded merely because of that profession.

Legal Update (September 2026): CPLR 2106 was amended effective January 1, 2024 (L. 2023, ch. 559) to permit an affirmation under penalty of perjury by any person, wherever made — see Matter of Sweet v Fonvil, 2024 NY Slip Op 02654 — so the professional and ownership restrictions this note turns on no longer control. Current rule: CPLR 2106 after the 2024 amendment.

Pugsley: two motions with two separate burdens

Pugsley Chiropractic PLLC v Merchants Preferred Insurance Co., 50 Misc 3d 139(A), was decided February 17, 2016, by the Appellate Term, First Department.

Civil Court had granted the insurer’s medical-necessity motion and denied the provider’s cross motion. The appellate court modified that order: it denied the insurer’s motion and reinstated the complaint, while leaving the denial of the provider’s cross motion in place.

The insurer relied on an IME report by a chiropractor/acupuncturist that incorrectly described her as a physician. Under the then-applicable rule, her affirmation was not admissible, and the report had not been shown to have been properly sworn before an authorized official. The court therefore rejected the insurer’s showing on its motion.

Separately, the provider failed to establish that its claims were overdue. Reinstatement of its complaint meant it could continue litigating; it did not mean the court had found every billed service necessary or ordered payment.

Jason Tenenbaum’s original February 2016 analysis

The original quotations and commentary follow. The professional restriction and interdepartmental observations are preserved as historical discussion, not repeated as a current categorical rule. Jason’s final question remains a question; the opinion does not expressly adopt his suggested explanation.

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?

Overdue benefits require more than pointing to an opponent’s defective report

The opinion cited Viviane Etienne Medical Care, P.C. v Country-Wide Insurance Co., 25 NY3d 498 (2015). That Court of Appeals decision explains the provider’s proof of mailing and receipt of statutory claim forms, admissible support and overdue payment.

It also distinguishes timely denied claims from claims neither timely paid nor denied, and discusses verification affecting the payment period. Insurance Law § 5106(a) ties overdue benefits to receipt of proof of the fact and amount of loss. Do not reduce this to a universal instruction to count 30 days from the accident, treatment or the date printed on a bill.

A denial may be evidence of the insurer’s position. It does not, without the surrounding chronology and applicable rules, establish every element of the provider’s motion. The previous expansion turned Jason’s rhetorical question into a categorical inference and overstated a clean geographic split. The revised discussion instead starts with the Court of Appeals framework and the particular record.

For comparison, St. Vincent’s moving-proof analysis separates mailing, business records and medical evidence. The Crossbridge exhaustion discussion shows why a coverage defense and proof supporting it are also separate questions.

Current affirmation eligibility does not supply expertise

Matter of Sweet v Fonvil identifies January 1, 2024 as the effective date of the any-person expansion. That change concerns who may use a qualifying affirmation. It does not authorize someone to misstate their license, offer an opinion outside their qualifications or authenticate records without a proper basis.

Review the actual signer, qualifications, examined patient or reviewed records, and reasoning. Then check the current form language and document-specific exceptions. Under CPLR 3212(b), the motion still requires supporting proof addressing the material facts.

The Radiology Today case note illustrates an inadequate substantive rebuttal as well as an old form defect. These notes explain different procedural failures; they do not establish that adding a signature changes the medical merits.

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Connect to the Encyclopedia

• Topic hub: Affirmations & Affidavits (CPLR 2106)
• CPLR 2106: Expert Report Requirements (Complete Guide)
• Understanding CPLR 2106 requirements and common procedural errors
• Improper use of affirmations under CPLR 2106 can cost plaintiffs their cases
• What constitutes a prima facie case in no-fault insurance claims
• Establishing a prima facie case of medical necessity
• New York No-Fault Insurance Law
• A formulation of a prima facie case
• Another formulation of a prima facie case
• The CPLR 3212(g) paradigm

Last reviewed: September 2026. The report’s ownership, two-motion disposition, professional-eligibility rule and overdue-benefits discussion have been corrected. Jason’s original analysis remains labeled historical; publication date and page identity are retained.