Authorizes any person to make an affirmation in a civil action in lieu of an affidavit

This measure would amend CPLR 2106 to permit the use of an affirmation in place of an affidavit for all purposes in a civil action, a procedure modeled upon the Federal declaration procedure (see 28 USCA 1746; unsworn declarations under penalty of perjury). Currently, under New York law, an affidavit must be sworn to before a person authorized to take acknowledgments of deeds by the real property law (CPLR 2309(a)). However, specified professional persons (attorney, physician, osteopath or dentist) may substitute an affirmation for an affidavit in judicial proceedings in which they are not a party. This measure would broaden the statute to permit the use of an affirmation in place of an affidavit for all purposes in a civil action with no restriction to non-parties.

The current law has created two significant problems in New York practice. First, the requirement for notarization places a major burden on unrepresented litigants who have difficulty locating a notary. Second, the requirement has made it extremely burdensome to obtain equivalent notarization in foreign countries, which is a common occurrence in major commercial litigation.

Within the State, it is increasingly difficult to find a notary outside of central business districts, and when found, usually in banks, they often refuse to notarize for anyone not known to a branch officer. The significant needs of pro se litigants for notary services has resulted in heavy demand upon the county and court clerks' offices, particularly in New York City, resulting in an untenable burden upon an unrepresented party. For the poor, especially, this often results in unnecessary cost and delay. Frequently, notary services may be necessary outside business hours. In the era of electronic filing, there should be no impediment caused by lack of a notary. In addition, we are advised that some persons have religious objections to swearing, but no such objections to affirming. This change would offer an alternative to swearing to the truth of a paper submission that is presently available to live witnesses giving testimony, CPLR 2309 (a),(b).

It is even more burdensome to execute an affidavit abroad. Questions often arise as to who would be the appropriate official that would be equivalent to a New York notary and whether the affidavit obtained in a foreign country may be unusable in New York litigation. See Green v. Fairway Operating Corp., 72 A.D. 3d 613 (1st Dept. 2010); Matter of Eggers, 122 Misc.2d 793 (Surr. Ct., Nassau Co. 1984). Commercial litigants with international cases in the Commercial

Division of State Supreme Court increasingly must go to extraordinary lengths to obtain affidavits notarized overseas. This in turn detracts from the desirability of New York as a forum for international commercial disputes, important for maintaining New York as an international commercial center. These concerns have led to the proposed adoption of the Uniform Unsworn Foreign Declarations Act as promulgated by the Uniform Law Commission which would allow declarations to be executed abroad without the need for a notary's attestation. We believe, however, that a statute allowing affirmations in all litigation circumstances by all persons is more appropriate for inclusion in the CPLR.

Current case law suggests that, to be considered the equivalent of an oath, an affirmation should "be administered in a form calculated to awaken the conscience and impress the mind." CPLR 2309(b); see People v. Coles, 141 Misc.2d 965 (N.Y. Sup. Ct., Kings Co. 1988) (waiver of immunity held to be under "oath" if defendant testified to grand jury that signature on it was his); People v. Lennox, 94 Misc.2d 730 (N.Y. Sup. Ct., Westchester Co. 1978) (signature above words to the effect that document signed under penalties for perjury would satisfy requirement for sworn traffic information). Because the affirmation authorized by the amendment would be used by a much larger group than the limited classes of professionals now permitted, and such may not be familiar with the particulars of the law of perjury, the amendment requires that the signer affirm the facts stated in this form:

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

(Signature)

The proposed amendment will result in greatly expanded use of the CPLR 2106 affirmation, and is likely to supplant the use of making affidavits in almost all circumstances. Accordingly, our Advisory Committee considered whether there is any difference in the charges or punishment between pet:iury by affidavit or affinnation. Its members concluded that, whether made in an affidavit or in the form of an affirmation as proposed in amended CPLR 2106, a false statement made with the intention of misleading the court will constitute perjury in the second degree, a Class E felony punishable by up to four years imprisonment. Penal Law §§ 70.00(2)(b), 210.00 (1) and (5),210.10.

The Committee considered the widespread concern about misleading or inaccurate affidavits and affirmations by attorneys submitted in foreclosure proceedings, as reflected in Rule 202. 12-A(f) of the Uniform Rules of the New York State Trial Courts permitting the Chief Administrative Judge to require counsel to file "affidavits or affirmations confirming the scope of inquiry and the accuracy of papers filed in residential mortgage foreclosure actions." However, the Committee concluded that, because this proposed amendment makes no change to the use of affirmations by attorneys, it will have no impact on the filing of affidavits and affirmations by attorneys in foreclosure actions.

This measure would have no fiscal impact on the State. It would take effect on the first day of January next succeeding the date on which it shall have become a law.

Legislative history

None. New proposal.