Burden of Proof: Affirmation of Truth of Statement by ‘Any Person’

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Burden of Proof: Affirmation of Truth of Statement by ‘Any Person’

As many of us have heard by now, there has been a major amendment to CPLR 2106, Affirmation of truth of statement. Previously limited to lawyers, physicians, osteopaths or dentists, CPLR 2106 can now be used by “any person,” regardless of where they are located.

Prior Versions of CPLR 2106

When originally enacted in 1963, CPLR 2106 provided as follows:

Rule 2106. Affirmation of truth of statement by attorney

The statement of an attorney admitted to practice in the courts of the state, 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.

Ten years later, in 1973, CPLR 2106 was amended to permit physicians, osteopaths or dentists licensed to practice in New York to join the exclusive club of those permitted to submit affirmations in lieu of affidavits, again so long as the affirmant was not a party to the action in which the affirmation was being utilized.

Forty years later, in 2013, CPLR 2106 was again amended to add a new subdivision (b), which greatly expanded the cohort permitted to utilize an affirmation, literally adding billions of new members to this formerly exclusive club, so long as the affirmant was located physically outside the United States and enumerated possessions of the United States. The 2013 amendment left the first paragraph of CPLR 2106 unchanged and added the following language:

(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 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 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 foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

(Signature)

The inclusion of approved language for the form of the affirmation was a benefit to the bar, and the “suggestion” that going forward affirmations “be in substantially the following form” should not be read to encourage creative drafting. And there CPLR 2106 remained until 2023 when, in an interesting twist, two different amendments to the statute were simultaneously enacted, albeit with different effective dates.

The Recent Amendment

On Oct. 25, 2023, the governor signed two amendments to CPLR 2106 into law. One, effective immediately, allowed for all New York-licensed health care practitioners (instead of just physicians, osteopaths or dentists), to submit affirmations in lieu of affidavits.¹ The other, effective Jan. 1, 2024, allows for anyone, anywhere to submit an affirmation in lieu of an affidavit.²

The amendment effective Oct. 25, 2023, had limited changes to CPLR 2106, replacing “physician, osteopath or dentist” with “health care practitioner licensed, certified, or authorized under title eight of the education law,” and adding in the pronoun “her” in addition to “him.”

The amendment effective Jan. 1, 2024 is a total overhaul of CPLR 2106. Harkening back to the earlier days, the newest 2106 only has one provision, which reads as follows:

Rule 2106. Affirmation of truth of statement. The statement of any person whenever 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)

It is unclear why these consecutive amendments were signed into law on the same day, with the first only being effective 69 days. Confusing things further, the New York State Senate website shows both amendments with the following disclaimer: “NB Separately amended; cannot be put together.” While the amendment effective Jan. 1, 2024 clearly encompasses the expanded class of medical providers covered by the Oct. 25, 2023 amendment, it does not appear to supersede it, and the first amended version is not repealed. So, while medical providers and attorneys can continue to avail themselves of the Oct. 25, 2023 amendment, it is a distinction without a difference, and other than providing fertile ground for discussion among academics it will be nothing more than a footnote in the history of the CPLR.

In addition to those issues, perhaps the most important question surrounding this amendment: since “any person” can now submit an affirmation “wherever made,” why would anyone use an affidavit?³

The Jan. 1, 2024 amendment no longer contains the limitation that an affirmation may only be utilized by a non-party to the action.

Affidavit vs. Affirmation

So, is this largely a bloviated discussion centered on semantics? Other than the physical acts surrounding affidavits versus affirmations, is there really a difference?

Affidavit (16c) A voluntary declaration of facts written down and sworn to by a declarant, usu. before an officer authorized to administer oaths.

Affirmation (15c) A solemn pledge equivalent to an oath but without reference to a supreme being or to swearing; a solemn declaration made under penalty of perjury, but without an oath. Fed. R. Evid. 603; Fed. R. Civ. P. 43(b); While an oath is “sworn to,” an affirmation is merely “affirmed,” but either type of pledge may subject the person making it to the penalties for perjury. Cf. oath.—affirm, vb.—affirmatory, adj.⁴

While the definitions clearly show that we’re dealing with different things, what about the weight given, or perhaps punishment, for submitting an untruthful affidavit or affirmation? Largely, affidavits and affirmations are treated the same.

Notably, the Advisory Committee on Civil Practice left us with these parting words in their comment to the then-proposed amendment: “The Committee has concluded that whether a person provides an affidavit or an affirmation, a false statement made with intent to mislead 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)(e), 210.00(1) and (5), 210.10.”⁵

Unfortunately, as this is a new amendment, there is essentially no case law available⁶ to aid in assessing the proper use of an affirmation by “any person.” What we can caution you against is taking any creative liberties or deviating from the sample language in the Jan. 1, 2024 amendment. Post-effective date of the newest CPLR 2106, a decision from New York County Supreme Court by Melissa A. Crane, J.S.C., held that an unsworn affirmation stating “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” was not sufficient under the prior, or current, version of CPLR 2106.⁷

Conclusion

As the late David Siegel cautioned attorneys contemplating testing the outer limits of statutes and rules or otherwise making new law: “Let it be done in someone else’s case.” Sound advice, then and now.

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