KARLA JOHANNA CAYAMBE FLORES v. JOHN DOE (2026)

The papers listed by NYSCEF Doc. Nos. 40-54 were read on the motion of the Defendant Yeshi Tseten ("Defendant") for an Order pursuant to CPLR § 3212, granting Defendant summary judgment dismissing the complaint on the ground that the Plaintiffs Edison A. Villegas ("Villegas") and Karla Johanna Cayambe Flores ("Flores";  ¹ together the "Plaintiffs") fail to meet the serious injury threshold requirement under Insurance Law § 5102(d).

Plaintiffs commenced this action in November 2021 seeking damages for injuries allegedly sustained in a rear end motor vehicle accident occurring on March 15, 2021. Defendant joined issue by filing an Answer on February 11, 2022.

Villegas was the operator of the lead vehicle, and his wife Flores was the passenger when their vehicle was impacted in the rear by the vehicle owned by Defendant.

By Order dated March 12, 2026, the Court granted the Plaintiffs' motion for partial summary judgment on the issue of liability and to dismiss the First through Sixth Affirmative Defenses (Doc. No. 55). Defendant now moves for summary judgment dismissing the complaint on the grounds that the Plaintiffs fail to meet the serious injury threshold requirement under Insurance Law § 5102(d).

A defendant who seeks summary judgment on the threshold serious injury issue has the "initial burden of establishing that plaintiff did not suffer a serious injury within the meaning of New York Insurance Law § 5102(d)" (Baez v Rahamatali, 6 NY3d 868, 869 [2006]; see also Jong Cheol Yang v Grayline NY Tours, 186 AD3d 1501 [2d Dept 2020]). "[A] defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" (Grossman v Wright, 268 AD2d 79, 83-84 [2d Dept 2000]). "Once a defendant submits evidence demonstrating the lack of a serious injury, the burden shifts to the plaintiff to come forward with sufficient evidence to overcome the defendant's motion" (Attivissimo v Kugler, 226 AD2d 658, 659 [2d Dept 1996]). However, if the moving defendant fails to make a showing that a plaintiff has not suffered a serious injury from the subject accident, denial of the motion is required regardless of the sufficiency of the opposition papers (see Reed v Righton Limo, Inc., 82 AD3d 1070 [2d Dept 2011]; Akujuo v USA Truck, 227 AD2d 360 [2d Dept 1996]).

Here, the Plaintiffs urge dismissal of the motion in the first instance on the ground that the affirmations of the medical experts submitted by Defendant are not in compliance with CPLR 2106 (see Doc. No. 45 ¶¶ 12-15). The Plaintiffs are correct.

Failure to comply with CPLR 2106 renders the affirmations and annexed exhibits inadmissible and of no probative value (see Grandsard v Hutchison, 2024 NY Misc LEXIS 72914, 2024 WL 1957086 [Sup Ct, New York County 2024], affd 227 AD3d 491 [1st Dept 2024]; Slade v Brodie, 88 Misc 3d 1244(A), 2026 NY Slip Op 50431(U) [Sup Ct, Kings County 2026]; Torres v Pharney Group, LLC, 88 Misc 3d 1255(A), 2026 NY Slip Op 50550(U) [Sup Ct, Westchester County 2026]; Yacinthe v Pamdh Enters. Inc., 2025 NY Slip Op 34752[U], 2025 NY Misc LEXIS 10117, 2025 WL 3553632 [Sup Ct, New York County 2025]; Hernandez v Interior Masters Group of NY Inc., 87 Misc 3d 1242[A], 2025 NY Slip Op 51875[U] [Sup Ct, Queens County 2025] [Dunn, J.]).

CPLR 2106, as amended January 1, 2024, as in effect at the time this motion was filed, provides that a statement of any person subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit and that such affirmation "shall" be in substantially the following form:

I affirm this ___ day of ___, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

The physician affirmations submitted by Defendant in support of his motion is not substantially in the form mandated by CPLR 2106.

The affirmation of Dr. Ferriter, dated November 11, 2024 (Doc. No. 34), states that:

I, Pierce Ferriter, M.D., being an orthopedist, duly licensed to practice medicine in the State of NY, pursuant to the applicable provisions of the Civil Practice Law and Rules section 2106, hereby affirm under the penalties of perjury that the statements contained herein are true and accurate.

The affirmation of Dr. Mazzie, dated January 5, 2025 (Doc. No. 35), states that:

I, Joseph Mazzie, D.O., being a doctor duly licensed to practice medicine in the State of New York, pursuant to Civil Practice Law and Rules section 2106, hereby affirm under penalties of perjury that the statements contained herein are true and accurate.

The above "affirmations were sufficient under the older CPLR 2106, but effective January 1, 2024, they are no longer legally sufficient to comport with this rule, as amended" (Torres v Pharney Group, LLC, 88 Misc 3d 1255(A), 2026 NY Slip Op 50550(U) [Sup Ct, Westchester County 2026]). Here, the affirmations do not acknowledge the possible penalties of fine or imprisonment if the statements made therein are not true, nor do they acknowledge that the document provided may be filed in an action or proceeding in a court of law. Mere reference to CPLR 2106 in an affirmation does not import by reference the required language of the statute nor demonstrate an appreciation for the "gravity" and "seriousness" of the statements made in the affirmation and the consequences of making false statements (see Grandsard v Hutchison, 2024 NY Misc LEXIS 72914, 2024 WL 1957086 [Sup Ct, New York County 2024], affd 227 AD3d 491 [1st Dept 2024]; Zhou v Cent. Radiology, P.C., 84 Misc 3d 410 [Sup Ct, Queens County 2025]; see also G.B. v J.M.B., 88 Misc 3d 1254(A), 2026 NY Slip Op 50538(U) [Sup Ct, Westchester County 2026] [affirmation that "affirm[ed] the following under penalty of perjury pursuant to Rule 2106 of the CPLR" was insufficient]; Capital One, N.A. v Heusner, 88 Misc 3d 1236[A], 2026 NY Slip Op 50354[U] [Sup Ct, Kings County 2026] [affirmation made " 'under penalties of perjury pursuant to CPLR § 2106' " is "inadmissible as it lacks the mandatory language required for affirmations on or after January 1, 2024"]).

In reply to the Plaintiff's opposition, the Defendant contends that the affirmations are admissible because they state that the truth of statements contained therein were affirmed under the penalties of perjury (Doc. No. 54 ¶ 5). However, Defendant ignores the relevant amendment to CPLR 2106 effective as of January 1, 2024, which mandates the inclusion of additional acknowledgments. Mere acknowledgment that the statements contained in the affirmation are true under penalties of perjury is insufficient (see Grandsard v Hutchison, 2024 NY Misc LEXIS 72914, 2024 WL 1957086 [Sup Ct, New York County 2024], affd 227 AD3d 491 [1st Dept 2024] [petitioner's " 'Verification/Affirmation" ' that "merely affirmed 'under the penalty of perjury' " was not in compliance with CPLR 2106]; G.B. v J.M.B., 88 Misc 3d 1254(A), 2026 NY Slip Op 50538(U) [Sup Ct, Westchester County 2026] [affirmation that "affirm[ed] the following under penalty of perjury pursuant to Rule 2106 of the CPLR" was insufficient]; Torres v Pharney Group, LLC, 88 Misc 3d 1255(A), 2026 NY Slip Op 50550(U) [Sup Ct, Westchester County 2026] [affirmation of counsel "only made 'under the penalties of perjury' " was insufficient to comply with the CPLR 2106 as amended]; Capital One, N.A. v Heusner, 88 Misc 3d 1236[A], 2026 NY Slip Op 50354[U] [Sup Ct, Kings County 2026] [affirmation made " 'under penalties of perjury pursuant to CPLR § 2106' " is "inadmissible as it lacks the mandatory language required for affirmations on or after January 1, 2024"]; Yacinthe v Pamdh Enters. Inc., 2025 NY Slip Op 34752[U], 2025 NY Misc LEXIS 10117, 2025 WL 3553632 [Sup Ct, New York County 2025] ["Counsel's affirmation merely states he 'affirms the following under penalty of perjury' . . . does not comport with CPLR 2106"]; R.F. v L.K., 82 Misc 3d 1221(A) [Sup Ct, Westchester County 2024] [affirmation that stated that he " 'affirms the following under the pains and penalties of perjury,' . . . is insufficient and does not encompass the requisite language, or language substantially reflective of that required in the statute"]).

Here, since the physician affirmations submitted by Defendant are not in compliance with CPLR 2106, they are of no probative value. Accordingly, Defendant cannot meet his initial burden of establishing that the Plaintiffs did not suffer a serious injury within the meaning of Insurance Law 5102(d) and Defendant's motion must be denied.

Based on the foregoing, it is hereby:

ORDERED that Defendant's motion is denied.

This constitutes the Decision and Order of the Court.

Dated: June 3, 2026

Long Island City, New York

SCOTT DUNN, J.S.C.

FOOTNOTES

1.   Although Defendant states that this action was settled as to Flores, the Court notes that Defendant only submits a partially signed stipulation of discontinuance (Doc. No. 45 ¶ 2).

Scott Dunn, J.