[t]he statement of any person wherever made, 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.
Before this amendment, only certain non-party New York licensed professionals—namely, attorneys, and certain health-care professionals—and individuals physically located outside the United States could submit affirmations in lieu of affidavits. The new CPLR 2106 has removed these requirements. Any person—whether a party to the litigation or not—can now provide an affirmation in lieu of an affidavit so long as their affirmation contains the following language:
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 allowing for affirmations in place of affidavits is like the federal statute, 28 U.S.C. 1746, which allows the use of unsworn declarations under the penalty of perjury. This is a welcome change to many, as it will spare your client the time, cost, and inconvenience of obtaining a notary.
But this rule change raises many other questions. For one, how does it impact the other sections of the CPLR that refer to affidavits? For example, certain CPLR sections authorize the use of affidavits to be submitted in support of pleadings (i.e. CPLR 403[b]) and motions (i.e. CPLR 2214[b], CPLR 3212[b], CPLR 3215). Can a party affirmation now be submitted in place of a fully-executed affidavit? A recent article by Professor Patrick M. Connors entitled CPLR 2106 Amended To Permit Any Person To Submit Affirmation in Lieu of Affidavit appears to answer that question in the affirmative.
Second, how does this rule change impact verifications of pleadings by affidavit? Under CPLR 3020(d) and 3021, a verification must be accompanied by affidavit of a party or nonparty. Professor Connors reasons that although, “one can reasonably conclude that, under the current CPLR 2106, verification can be performed via the affirmation of a party or nonparty . . ., there is disagreement on whether a verification must be performed before a notary.” Professor Connors advises that he has been informed that, while certain county clerks have rejected filings of pleadings that were verified pursuant to the CPLR 2106 affirmation, other clerks have accepted these pleadings. At this point, we can only hope to get more guidance on the use and applicability of CPLR 2106 and proceed with caution as we await decisions addressing the new amendment.
Third, how does this rule impact responses to interrogatories, which, under CPLR 3133, must be “answered in writing under oath by the party served”? Professor Connors concludes that it appears that the required “oath” can be performed by way of an affirmation.
Professor Connors also addressed in his article at least two circumstances that continue to require notarization. First, a notary is required to acknowledge a conveyance of real property under Section 298 of the Real Property Law. Second, under CPLR 3113(b), deposition testimony must be sworn to before a notary, and under CPLR 3116(a) any changes to a deposition transcript must be signed by the witness “before any officer authorized to administer an oath.”
Takeaway:
No doubt there are many questions that need to be answered about the impact of this amendment. And until we get further guidance, practitioners should proceed with caution. We expect that case law will soon address the impact of the new CPLR 2106, and we at the New York Commercial Division Practice will certainly be monitoring any guidance or decisions impacting this rule change.
