As previously reported on June 3, 2024, the January 1, 2024 amendments to CPLR 2106 revised the statutory language required for attorney affirmations in New York.
At that time, we cautioned that attorney affirmations relying on the traditional “under the penalty of perjury” language could be deemed defective under the amended statute, which now requires revised language that the statements are affirmed, among other things, “under the penalties of perjury under the laws of New York, which may include a fine or imprisonment.” Since then, as anticipated, courts have begun to strictly enforce the revised requirements, with several rejecting affirmations that fail to incorporate the updated statutory verbiage. However, recent decisions suggest that—at least in some circumstances—such defects may be curable.
A notable example came in Bruning v. Pharney Group LLC, 87 Misc.3d 1208(A) (Sup. Ct. Westchester Cnty. Sept. 24, 2025), where a defendant filed a motion for summary judgment, and, in response, plaintiff argued that all the moving affirmations were defective because they did not include language required by the then-recently enacted provisions of CPLR 2106. Despite the fact that the defendant had submitted corrected affirmations, the court initially denied the motion in July 2025, firmly stating, “[a]s a result of the failure of defendant to submit proper and admissible affirmations, defendant [] failed to demonstrate its prima facie entitlement to summary judgment.” This ruling underscored how strictly courts were enforcing the requirements at the time, even when the defects appeared technical and were easily remediable. In fact, in looking back on this earlier decision, the court in Bruning emphasized that, at the time, “appellate case law regarding the newly-enacted CPLR 2106 requirement was minimal, and provided no clear guidance regarding whether a movant could cure” other than to state that deficient affirmations would not be considered.
It was not until a more recent decision in August 2025 by the Appellate Division, Second Department in Kallo v. Kane St. Synagogue, 241 A.D.3d 522 (2d Dep’t Aug. 6, 2025), that the landscape began to shift. In Kallo, the Appellate Division held that defects in the form of an affirmation could be cured by submitting a corrected document on reply, provided that the opposing party suffered no prejudice. Following this ruling, the court in Bruning revisited its earlier decision and acknowledged that the Appellate Division’s guidance “reflects a change in the law” and more aligns with New York’s general approach of allowing procedural deficiencies to be remedied on reply in the absence of any harm. The court in Bruning ultimately reversed its initial ruling and permitted the corrected affirmations to be considered.
Each of these cases suggests a more flexible approach may now be possible in considering non-compliant affirmations under CPLR 2106. However, it is clear that the law is still developing. For now, the safest course remains for practitioners to assume that compliance will be strictly scrutinized by courts and ensure that all attorney or witness affirmations submitted comply fully with the amended CPLR 2106, and, if defects are discovered, promptly correct them.
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