CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentist
The
statement of an attorney admitted to practice in the courts of the
state, or of a physician, osteopath or dentist, authorized by law to
practice in the state, who is not a party to an action, when subscribed
and affirmed by him to be true under the penalties of perjury, may be
served or filed in the action in lieu of and with the same force and
effect as an affidavit.
St. Vincent Med. Care, P.C. v Mercury Cas. Co., 2009 NY Slip Op 50810(U) (App. Term, 2nd, 2009)
In
opposition, plaintiff submitted an affirmation executed by its
principal, Dr. Zakharov. Defendant objected to said affirmation in its
reply papers, citing CPLR 2106. The submission of Dr. Zakharov's
affirmation was improper because he is a principal of plaintiff
professional corporation, which is a party to the action (see CPLR 2106; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A] 2006 NY Slip Op 51055[U] [App Term 2d & 11th Jud Dists 2006]; see also Pisacreta v Minniti,
265 AD2d 540 [1999]). Since the Civil Court should not have considered
any facts set forth, or exhibits referred to, in said affirmation (see Pisacreta, 265 AD2d 540), plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Plaintiff's remaining contentions lack merit.
The bold is mine.
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