senate Bill S5372A

Signed By Governor
2013-2014 Legislative Session

Relates to an affirmation by any person in a civil action

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Archive: Last Bill Status - Signed by Governor


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Sep 23, 2014 signed chap.380
Sep 11, 2014 delivered to governor
Jun 12, 2014 returned to senate
passed assembly
ordered to third reading rules cal.218
substituted for a9762
Jun 10, 2014 referred to codes
delivered to assembly
passed senate
May 12, 2014 advanced to third reading
May 07, 2014 2nd report cal.
May 06, 2014 1st report cal.521
May 01, 2014 print number 5372a
amend and recommit to judiciary
Jan 08, 2014 referred to judiciary
May 16, 2013 referred to judiciary

Votes

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Bill Amendments

Original
A (Active)
Original
A (Active)

S5372 - Bill Details

See Assembly Version of this Bill:
A9762
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd R2106, CPLR

S5372 - Bill Texts

view summary

Provides a form for an affirmation by any person in a civil action.

view sponsor memo
BILL NUMBER:S5372

TITLE OF BILL: An act to amend the civil practice law and rules, in
relation to an affirmation by any person 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). This measure has
been revised from its prior form to add the words "under the laws of
New York" in the affirmation.

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 unreasonable
burden upon an unrepresented party. For the poor, especially, this
often causes 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, our Committee is 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. (See, 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, which desirability is 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 this measure 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 under the laws of
New York, 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 it is likely to supplant the use of making
affidavits in almost all circumstances. Accordingly, our Committee
considered whether there is any difference in the charges or
punishment between perjury by affidavit or affirmation. The 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.

In formulating its recommendation, our 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." Ultimately, 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.


2012 Legislative History: OCA 2012-64 Senate 7572 (Committee on Rules)
(Rules)

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5372

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              May 16, 2013
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- read twice and ordered printed, and when printed  to  be
  committed to the Committee on Judiciary

AN  ACT  to  amend  the  civil practice law and rules, in relation to an
  affirmation by any person in a civil action

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Rule 2106 of the civil practice law and rules, as amended
by judicial conference proposal number 3 for the year 1973,  is  amended
to read as follows:
  Rule  2106. Affirmation of truth of statement [by attorney, physician,
osteopath or dentist]. The statement of [an attorney admitted  to  prac-
tice  in  the  courts  of  the  state,  or  of a physician, osteopath or
dentist, authorized by law to practice in the state, who is not a  party
to  an  action]  ANY  PERSON, when subscribed and affirmed by [him] THAT
PERSON to be true under the penalties of  perjury,  may  be  [served  or
filed]  USED  in  [the] AN action 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)
  S 2. This act shall take effect on the first of January next  succeed-
ing the date on which it shall have become a law.


 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09833-01-3

S5372A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A9762
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd R2106, CPLR

S5372A (ACTIVE) - Bill Texts

view summary

Provides a form for an affirmation by any person in a civil action.

view sponsor memo
BILL NUMBER:S5372A

TITLE OF BILL: An act to amend the civil practice law and rules, in
relation to an affirmation by any person 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 add a new paragraph (b) to
permit the use of an affirmation in place of an affidavit by any
person when subscribed and affirmed by that person when that person is
physically located outside the geographic boundaries of the United
States, Puerto Rico, the United States Virgin Islands, or any
territory or insular possession subject to the jurisdiction of the
United States, 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). This measure has been revised
from its prior form to add the words "under the laws of New York" in
the affirmation.

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.

The current law has created significant problems in New York practice.
The requirement has made it extremely burdensome to obtain equivalent
notarization in foreign countries, which is a common occurrence in
major commercial litigation. When executing 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, which desirability is 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.

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 this measure 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 under
the laws of New York, which may include a fine or imprisonment, that I
am physically located outside the geographic boundaries of the United
States, Puerto Rico, the United States Virgin Islands, or any
territory or insular possession subject to the jurisdiction of the
United States, 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 it is likely to supplant the use of affidavits
executed in foreign countries. Accordingly, our Committee considered
whether there is any difference in the charges or punishment between
perjury by affidavit or affirmation. The 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.

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.

2013-14 Legislative History:

OCA 2013-46 Senate 5372 (Senator Bonacic) (ref to Judiciary)

2012 Legislative History:

OCA 2012-64 Senate 7572 (Committee on Rules) (Rules)

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5372--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              May 16, 2013
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- read twice and ordered printed, and when printed  to  be
  committed  to the Committee on Judiciary -- recommitted to the Commit-
  tee on Judiciary in accordance with Senate Rule 6, sec. 8 -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN ACT to amend the civil practice law and  rules,  in  relation  to  an
  affirmation by any person in a civil action

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Rule 2106 of the civil practice law and rules,  as  amended
by  judicial  conference proposal number 3 for the year 1973, is amended
to read as follows:
  Rule 2106. Affirmation of truth of statement [by attorney,  physician,
osteopath  or  dentist].  (A)  The  statement of an attorney admitted to
practice in the courts of the state, or of  a  physician,  osteopath  or
dentist,  authorized by law to practice in the state, who is not a party
to an action, when subscribed and affirmed by him to be true  under  the
penalties  of  perjury,  may be served or filed in the action in lieu of
and with the same force and effect as an affidavit.
  (B) THE STATEMENT OF  ANY  PERSON,  WHEN  THAT  PERSON  IS  PHYSICALLY
LOCATED  OUTSIDE  THE GEOGRAPHIC BOUNDARIES OF THE UNITED STATES, PUERTO
RICO, THE UNITED STATES VIRGIN ISLANDS,  OR  ANY  TERRITORY  OR  INSULAR
POSSESSION  SUBJECT TO THE JURISDICTION OF THE UNITED STATES, SUBSCRIBED
AND AFFIRMED BY THAT PERSON TO BE TRUE UNDER THE PENALTIES  OF  PERJURY,
MAY  BE  USED IN AN ACTION IN LIEU OF AND WITH THE SAME FORCE AND EFFECT
AS AN AFFIDAVIT. SUCH AFFIRMATION SHALL BE IN SUBSTANTIALLY THE  FOLLOW-
ING 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  I  AM  PHYSICALLY LOCATED OUTSIDE THE GEOGRAPHIC BOUNDARIES OF THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09833-03-4

S. 5372--A                          2

UNITED STATES, PUERTO RICO, THE UNITED STATES  VIRGIN  ISLANDS,  OR  ANY
TERRITORY  OR  INSULAR  POSSESSION  SUBJECT  TO  THE JURISDICTION OF THE
UNITED STATES, 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)
  S  2. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.

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