BILL NUMBER:S7572

TITLE OF BILL:
An act
to amend the civil practice law and rules, in relation to affirmations
in a civil action

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her
Advisory Committee on Civil Practice.

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.