NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9762
SPONSOR: Titus (MS) 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 decla-
ration 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 liti-
gants 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 desirabil-
ity 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. Stip. Ct., Kings Co. 1988) (waiver of immu-
nity 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 mislead-
ing 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)
0012 LEGISLATIVE HISTORY: OCA 2012-64
Senate 7572 (Committee on Rules) (Rules)
