Provides a form for an affirmation by any person in a civil action.
Ayes (58): Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Espaillat, Farley, Felder, Flanagan, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Montgomery, Nozzolio, O'Brien, O'Mara, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Sampson, Sanders, Savino, Serrano, Seward, Skelos, Squadron, Stavisky, Stewart-Cousins, Tkaczyk, Valesky, Young, Zeldin
Excused (3): Hassell-Thomps, Hoylman, Smith
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 resulting 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)
STATE OF NEW YORK ________________________________________________________________________ 5372--A 2013-2014 Regular Sessions IN SENATE 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 THEEXPLANATION--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.