By now, most New York practitioners are aware (or at least have heard) of the recent changes to CPLR 2106, which was amended as of January 1, 2024 to allow “any person” to submit an affirmation “in lieu of and with the same force and effect” as an affidavit in an action in New York.
This was a privilege previously reserved for New York attorneys, certain licensed professionals, and those physically located outside the United States. While the majority of the focus understandably has been on the impact of this legislation on litigants and other individuals who are no longer required to submit affidavits, the amendment also has the serious, but often overlooked, consequence of rendering the form of prior New York attorney affirmations ineffective and not properly sworn unless the affirmations contain the new, revised language required by the amendment.
Specifically, the revised CPLR 2106 – which applies to all actions pending as of January 1, 2024 or commenced thereafter – provides as follows:
The 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. 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.
(Signature)
Therefore, while New York attorney affirmations previously were considered effective if they included language that the statements contained therein were made “under penalty of perjury,” this language is no longer sufficient. The new and more robust language required by CPLR 2106, as amended, must be included for affirmations to be considered properly sworn. In fact, attorneys who rely on the old form and fail to include the new language run the serious risk of courts rejecting their affirmations as inadmissible, which has already occurred in some cases.
For example, as recently as April 26, 2024, in Grandsard v. Hutchison, 153605/2024, 2024 WL 1957086, 1 (Sup. Ct. N. Y. Cnty. 2024), aff’d, 2024 N.Y. Slip Op. 02613 (1st Dep’t 2024), the Honorable Richard G. Latin, J.S.C., in New York County refused to consider a New York attorney’s affirmation in support of a petition because it merely affirmed that the attorney’s statements were made “under penalty of perjury.” The affirmation did not comply with the new requirements of CPLR 2106 by “acknowledging the laws of New York and the possibility of fines or imprisonment.” As a result, Justice Latin concluded that the petition was unverified and therefore denied the petition in its entirety.
While it remains unclear how New York courts will continue to address this ongoing issue, especially given the relatively recent effective date of the amendment, New York practitioners submitting affirmations should immediately update their form language to avoid the unnecessary cost and embarrassment of having to resubmit these documents or, worse yet, having an application denied for failure to comply with CPLR 2106, as amended.
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