Burden of Proof: Affirmation of Truth of Statement by ‘Any Person’ Redux
5.24.2024
Introduction
Our spring column discussed the Jan. 1, 2024 amendment to CPLR 2106 allowing “any person,” regardless of where they are located, to use an affirmation in lieu of an affidavit. We reviewed the history of CPLR 2106, and the various amendments to the provision since the 1963 enactment of the statute. However, given the recency of the amendment, at the time of that column there were few cases offering guidance on the newest amendment.
Since then, several Supreme Court decisions have come down, as well as a Second Department (election law) case, a First Department (election law) case and one from the Eastern District of New York. Given the impact that the amendment has on legal practice, these cases offer useful guidance on proper implementation of the new rule. For those of you who don’t want to read any further, the First Department decision and the underlying Supreme Court decision it affirmed make clear that, until another appellate court rules otherwise, all affirmations, including attorney affirmations, must track the language in CPLR 2106.
Legislation Around CPLR 2106
Before delving into new case law, it is worth noting that the two differing versions discussed in the spring 2024 issue of the Bar Journal remain in effect, without any further guidance or information than reported previously. (N.B.: In this article our focus is on the Jan. 1, 2024 amendment.) In addition, there is proposed legislation, introduced on March 14, 2024, to expand the provision to allow for use of affirmations in administrative proceedings, in addition to “actions.”
Court Guidance on CPLR 2106
On March 15, 2024, New York Civil Court Chief Clerk Alia A. Razzaq issued a memorandum[1] regarding “Affirmation in Lieu of Affidavit Amendment to CPLR 2106 – Affirmation of Truth of Statement,” with an immediate effective date. The memorandum advises as follows:
Background
On October 25, 2023, Governor Kathy Hochul signed Bill A05772 into law, which amended rule 2106 of the CPLR by expanding the ability to submit an affirmation in lieu of an affidavit. Under the previous law, only an attorney, physician, osteopath, or dentist admitted to practice in New York State who is not a party to an action and any person who 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, could submit an affirmation in lieu of an affidavit.
This amendment, which went into effect on January 1, 2024, allows for an affirmation by any person, wherever made, subscribed, and affirmed by that person to be true under the penalties of perjury, to be used in a civil action in New York in lieu of and with the same force and effect as an affidavit.
The Office of Trial Support and Department of Technology have updated court forms generated by UCMS and/or available on the web to remove any indicators that forms must be notarized or verified by a court employee. To ensure compliance with this amendment and establish uniform procedure citywide, we are issuing the following directive.
Directive
Effective January 1, 2024, any person may submit an affirmation of truth of statement which shall be substantially in 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)
Clerks are directed to:
- Review court forms with “affidavit” in the title and strike through or redact any language that refers to a notarization or employee verification requirement prior to distributing it to court users.
- Provide court users with an affirmation statement (see Exhibit A)[2] to review, sign and submit, along with their form.
- If a filer submits an affidavit that is already notarized, the clerk must accept the filing as is and proceed with processing.
The court form, along with the affirmation statement, has the same force and effect of one that is notarized or verified by a court employee.
This direction is specific to an “affidavit” and does not apply to the verification of pleadings, including the complaint, petition, and/or answer.
It is important to note that the court is recommending the specific language in the amendment and not suggesting alternative language. As the cases below reflect, when using an affirmation in lieu of an affidavit, the best practice is to use the statutory language.
Also of note, the civil court memorandum distinguishes between use of an affirmation in lieu of an affidavit and documents requiring verification. It is also our understanding that the Surrogate’s Court, in a similar vein, is requiring documents that must be verified under CPLR 3020 be submitted with verification, not an affirmation. No doubt other courts are working on rules and guidance to facilitate the implementation of the new rule.
Recent Case Law
Since the start of the year, CPLR 2106 has been referenced in 27 cases;[3] however, most of the cases cited early in the year deal with issues that predate the new amendment. Fortunately, several of the cases directly address the most recent amendment and offer guidance on both proper and improper use.
The Second Department decision mentioned above addressed, in part, whether a verification submitted after Jan. 1, 2024 in conjunction with an election validating petition was properly verified pursuant to CPLR 2106.[4] While election law cases generally have limited applicability to other areas of practice, the court’s discussion of the sufficiency of the verification, is informative (and the fact that this case and the First Department case discussed below are election law cases explains the quick appellate review):
Pursuant to CPLR 2106 (as amended by L 2023, ch 559 [eff Jan. 1, 2024]), “[t]he 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.” Here, the petitioner attached a verification page to the validating petition, wherein he attested, in accordance with the form language provided under CPLR 2106, “I affirm this 18th day of April, 2024, 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.” Thus, contrary to the objector’s contention, the validating petition was properly verified pursuant to CPLR 2106 (see L 2023, ch 559).[5]
Unsurprisingly, the court held the affirmation, mirroring the language in the statute, to be sufficient.
Conversely, in Matter of Grandsard v. Hutchison,[6] another election law case, a one-line decision by the First Department upheld the decision of Honorable Justice Richard G. Latin (NYSCEF Index No. 153605/2024), holding:
petitioner’s attorney submitted a “Verification/Affirmation” with the petition that merely affirmed “under the penalty of perjury.” Subsequent to January 1, 2024, courts have found that a statement simply affirming the following under the penalties of perjury fails to acknowledge the laws of New York and the possibility of fines or imprisonment and as a result is not in admissible form and cannot be relied upon (see R.F. v L.K., 82 Misc3d 1221[A][Sup Ct, Westchester County 2024]; Deigo Beekman Mutual Housing Association Housing Development Fund Corp. v. Hammond, 81 Misc3d 1244[A][Civ Ct, Bronx County 2024]).[7]
As a result of this omission, the Grandsard court held the attorney affirmation was insufficient. Opposing counsel had notified petitioner’s attorney of the deficiency via email, and no corrective action was taken by movant. Based upon the language used in the affirmation, the court held the petition was unverified and dismissed the proceeding.
It should also be noted that the Grandsard court also rejected the petition, as the affirmation/verification lacked the language that “impresses on the witness the gravity of his factual account” and, therefore, “an affirmation lacking the language that CPLR 2106 now requires fails to demonstrate an appreciation for that gravity and is ultimately not a verification at all.”
In order to illustrate how the lower courts are handling the sufficiency of affirmations, included below are some recent decisions discussing the newest amendment to CPLR 2106:
Reynolds v. Mercy Inv. Servs., Inc.,[8] noting in a footnote that: “An “affirmation,” although akin to an affidavit or declaration, is generally used in state court. See N.Y. CPLR 2106. An “[a]ffirmation is simply a solemn undertaking to tell the truth.” Notes of Advisory Committee on Fed. R. Evid. 603. CPLR 2106 was recently amended January 1, 2024, makes clear that an affirmation “may be used in an action in New York in lieu of and with the same force and effect as an affidavit.” However, the rule mandates that the affirmation must “be in substantially” the form set forth in the rule itself, which the filing at ECF No. 6 is not.”
Great Lakes Ins. v Am. S.S. Owners Mut. Protection & Indem. Assn. Inc.,[9] holding “Here, the [ ] defendants state in their unsworn affirmations that they, “under the penalties of perjury under the laws of the United States pursuant to 28 U.S.C. § 1746, affirm that the following is true and correct” (Docs 52-53). That is not sufficient under either version of CPLR 2106.
R.F. v. L.K.,[10] holding “[a]lthough [defendant] stated that he ‘affirms the following under the pains and penalties of perjury,’ this is insufficient and does not encompass the requisite language, or language substantially reflective of that required in the statute. There is no acknowledgement of the laws of New York or the possible penalties of fine or imprisonment if the statements made therein are not true. Thus, Defendant’s Affirmation is not in admissible form and cannot be relied upon as proof of facts set forth therein.”
Conclusion
Case law on this issue makes clear that when a statute provides language to be used in a legal document, even where the statute speaks in terms of “substantially” in the form of the language provided, modification is risky and likely fatal based upon the extant case law. Accordingly, we end this column with the same warning from David Siegel in the last: to wit, attorneys contemplating testing the outer limits of statutes and rules or otherwise making new law are wise to “let it be done in someone else’s case.” Sound advice, then and now, as the attorneys whose clients’ cases were adversely impacted by their failure to follow the statutory language would no doubt attest.
We wish everyone a pleasant summer, and remember, rest up for the post-Labor Day crunch coming our way.
David Paul Horowitz of the Law Offices of David Paul Horowitz has represented parties in personal injury, professional negligence, and commercial litigation for over 30 years. He also acts as a private arbitrator and mediator and a discovery referee overseeing pre-trial proceedings and has been a member of the Eastern District of New York’s mediation panel since itsinception. He drafts legal ethics opinions, represents judges in proceedings before the New York State Commission on Judicial Conduct and attorneys in disciplinary matters, and serves as a private law practice mentor. He teaches New York Practice, Professional Responsibility, and Electronic Evidence & Discovery at Columbia Law School.
Katryna L. Kristoferson is a partner at the Law Offices of David Paul Horowitz and has litigation experience across many practice areas. She has lectured at CPLR Update, Motion Practice, and Implicit Bias CLEs, and teaches “Bias and the Law” at the Elizabeth Haub School of Law at Pace University.
Endnotes:
[1] https://www.nycourts.gov/courts/NYC/SSI/directives/CCM/CCM214.pdf.
[2] The annexed exhibit contains the same language as the CPLR amendment.
[3] This representation is based upon a search of the Law Reporting Bureau for decisions discussion CPLR 2106 from January 1, 2024 to May 17, 2024, using LexisNexis to Shepardize CPLR 2106 reviewing the cases citing 2106 from January 1, 2024 to May 17, 2024, and reviewing the citing references listed under CPLR 2106 on Westlaw for January 1, 2024 to May 17, 2024.
[4] Matter of Sweet v. Fonvil, 2024 N.Y. Slip Op. 02654 (2d Dep’t May 10, 2024).
[5] Id. *5–6.
[6] Matter of Grandsard v. Hutchison, 2024 N.Y. Slip Op. 02613 (1st Dep’t May 9, 2024).
[7] Id.
[8] No. 24-CV-0362 (NJC) (JMW), 2024 U.S. Dist. LEXIS 24523 (E.D.N.Y. Feb. 8, 2024).
[9] 2024 N.Y. Slip Op. 30148(U) (Sup Ct., N.Y. Co. 2024).
[10] 82 Misc. 3d 1221(A) (Sup. Ct., Westchester Co. 2024).
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