R 2106.Affirmation of truth of statement.

This bill would amend the Civil Practice Law and Rules (CPLR) to expand the use of affirmations in lieu of affidavits in civil matters.

CPLR § 2106 has permitted attorneys and physicians to file unsigned affirmations in lieu of affidavits since adoption of the CPLR in 1963. For many years there has been an effort to broaden its availability to all persons to promote uniformity, reduce aspects of confusion regarding differences in federal and state litigation practice (as federal law has allowed unsworn affirmations by all persons in federal courts for decades), and bridge an access to justice gap by sparing court users the cost of finding and paying notaries public.

In 2014, CPLR § 2106 was expanded to permit use of affirmations by all persons, but only for affirmations signed outside of the United States. (Chapter 380 of 2014). In 2023, CPLR § 2106 was amended further to allow affirmations in lieu of affidavits for all persons, wherever made. (Chapter 559 of 2023). The scope of the legislation was intended to be broad, but its precise contours remain ambiguous. Specifically, there has been confusion as to whether the 2023 law allows affirmations to replace sworn statements other than affidavits, such as verified pleadings, answers to interrogatories, responses to notices to admit, and bills of particulars. The courts and practitioners were left without guidance to address these situations and the result has been a variety of conclusions, with occasionally unfortunate consequences when a practitioner adopted one interpretation and a court made the opposite determination in the same matter.

This bill makes additional clarifying amendments to CPLR § 2106 to clearly enumerate the types of documents for which affirmations may be substituted in civil matters, namely affidavits, certificates, responses to notices to admit, answers to interrogatories, verifications of a pleading, bills of particulars, and any other sworn statements. In addition, the bill makes clear that these changes do not affect the requirement set forth in the Domestic Relations Law that matrimonial agreements must be acknowledged in the form of a deed.

This rule is new. The Advisory Committee has been urged to adopt such a provision on a number of occasions. A number of bills to allow attorneys to certify their statements in certain proceedings instead of taking an oath to verify them have been introduced in the Legislature in recent years. See, e.g., 1958 NY County Lawyers Ass’n, Reports on New York State Legislative Bills, Report No. 134 and 1959 id. Report No. 43 (recommending approval). In California anyone may certify an unsworn statement to be true under penalty of perjury. Such an unsworn statement has the same effect as a sworn statement, except in three specified instances. See Cal Civ Proc Code § 2015.5 (Supp 1960). Similarly, any statement required to be made under the Federal Internal Revenue Laws is not verified by an oath but by a declaration that the statement is made under the penalty of perjury. See Int Rev Code of 1954, § 6065(a). New Jersey, it should be noted, permits oaths to be taken before attorneys. See NJ Rev Stat § 41:2-1 (Supp 1960).

The purpose of the rule is to save an attorney appearing in a civil action the trouble of taking an oath where he must formerly make an affidavit or verification of a paper to be served or filed in the action. An oath requires an appearance before someone authorized to administer it. The appearance takes some time and if there is no one in the attorney’s office to administer the oath at the time he is executing a paper, what is otherwise an annoyance can become a substantial nuisance. The matter is particularly burdensome to the attorney practicing in a small law office.

1 In addition to the permissible use of affirmations in an action or proceeding in a court of law, section 302 of the State Administrative Procedure Act extends that use to include any administrative proceeding in New York. The precise language reflects this change: 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 administrative hearing.

While attorneys always have a professional duty to state the truth in papers, the affirmation under the proposed rule gives attorneys adequate warning of the possibility of prosecution for perjury for a false statement. The official forms will contain a form such as the following:

Affirmation.

The undersigned, attorney of record [of counsel with the attorney of record] for A.B. affirms that the foregoing statement is true, under penalty of perjury. C.D. [address].

A corollary amendment is proposed to section 1620 of the Penal Law to include false affirmation by an attorney under this rule within the definition of perjury. In California false certification is perjury, and under the Internal Revenue Code it is a felony. See Cal Penal Code § 118 (Supp 1960); Int Rev Code of 1954, § 7206(1). An attorney who certifies falsely will also be subject to the sanctions for professional misconduct established by section 90 of the Judiciary Law.

The term “affirmation” rather than “certification” is used to distinguish this statement from certification of the accuracy of a copy under new CPLR rule 2105.

The Committee recommends the amendment of 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 USC 1746; unsworn declarations under penalty of perjury). This proposal has been amended 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 the City of New York, 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, the 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, 898 N.Y.S. 2d 848 (1st Dept. 2010); Matter of Eggers, 122 Misc.2d 793, 471 N.Y.S.2d 570 (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. The Committee believes, 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, 535 N.Y.S.2d 897 (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, 405 N.Y.S.2d 581 (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 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, the Committee considered whether there is any difference in the charges or punishment between perjury by affidavit or affirmation. The Committee 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.

Add, L 1962, ch 308, § 1; amd by Judicial Conference (1973); L 2014, ch 380, § 1, effective January 1, 2015; L 2023, ch 559, § 1, effective January 1, 2024; L 2023, ch 585, § 1, effective October 25, 2023; L 2024, ch 665, § 3, effective December 21, 2024; L 2025, ch 564, § 1, effective November 21, 2025.