New York State amends CPLR § 2106 to allow affirmations instead of affidavits.
significantly amended CPLR § 2106 (https://www.nysenate.gov/legislation/laws/CVP/2106). The amendment took effect as of January 1, 2024. The Bill was sponsored by Senator Brad Hoylman-Sigal (D, WF) 47TH Senate District.
Prior to the amendment, New York Civil Practice Rules and Procedures (“CPLR”) Section 2106 allowed a limited group of people, inclusive of attorneys and healthcare professionals who are licensed to practice in New York and people located physically outside of the United States, to submit to the court an “Affirmation of Truth”, whereas others would need to submit an affidavit that would need to be sworn and subscribed to before a Notary Public. Requiring an affidavit signed before a Notary Public was in Civil Proceedings in New York was burdensome and time consuming. In addition, Federal Courts disposed of the affidavit requirement under 28 U.S.C. §1746 (28 U.S.C. 1746 - Unsworn declarations under penalty of perjury - Content Details - USCODE-2022-title28-partV-chap115-sec1746 (govinfo.gov ).
Now, the amendment will allow a statement by “any person, wherever made, subscribed and affirmed by that person to be true under the penalties of perjury” to be used in a New York action in lieu of and with the same force and effect as an affidavit. The affirmation should include the following language set forth in the amended statute:
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.
This amendment applies both to “actions commenced on or after such effective date and all actions pending on such effective date.” While this amendment will certainly make it easier for parties, as finding a Notary Public will be unnecessary, there are questions as to whether an Affirmation will be considered if the necessary language is not included, or whether “Affirmations” would be accepted by the Court from affirmants out of state or if they can take the place of “verifications” used within the discovery process. Notably absent from the amendment is whether CPLR § 2309 (https://codes.findlaw.com/ny/civil-practice-law-and-rules/cvp-sect-2309/), which governs Affirmations, still applies. In other words, while anyone, regardless of profession and location, can now submit an affirmation under the amendment to CPLR § 2106, the out-of-state affirmation and oath requirements of CPLR § 2309(c) were not explicitly altered by this bill.
CPLR § 2309(c) states:
(c) Oaths and affirmations taken without the state. An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation.
A recent article, “CPLR 2106 Amended To Permit Any Person To Submit Affirmation in Lieu of Affidavit”, written by Distinguished Professor Patrick M. Connors from Albany Law School on February 28, 2024, was posted in the New York Law Journal and discusses the CPLR § 2106 amendment as well as some of the potential issues with its enactment. https://www.law.com/newyorklawjournal/2024/02/28/cplr-2106-amended-to-permit-any-person-to-submit-affirmation-in-lieu-of-affidavit/?slreturn=20240307194328.
Given the nature of the amendment and the potential for authenticity issues in Civil Proceedings we expect this amendment to be a highly litigated issue. For these reasons, it’s important that you contact a knowledgeable attorney, who can guide you through the intricacies and application of the law. At J. P. Robinson Law, we offer free initial consultants and will work with you to find the best path forward, whether by initiating or defending a legal action or resolving issues before legal steps must be taken. To get started please call J. P. Robinson Law at (914) 265-3179 or email at Justin@jprobinsonlawllc.com.
