Article by Alyson L. Knipe, Esq.

Do you need an affidavit in support of a motion for summary judgment, but your client is delaying returning the document because he or she does not have a notary readily available? Are you on trial and need a business record produced pursuant to a subpoena to be accompanied by a certification in the form of an affidavit and the custodian of the records tells you that there is no notary in their office? Do you have clients in rural areas who find themselves in the burdensome process of finding a notary to sign an Affidavit of No Excess Insurance? Look to the new N.Y. C.P.L.R. § 2106 to save the day.

Prior to its new amendment enacted on January 1, 2024, N.Y. C.P.L.R. § 2106 allowed a witness to submit an affirmation, which is an unnotarized sworn statement, in limited situations where the witness was signing the statement overseas or was either a lawyer, physician, osteopath, or dentist. All other witnesses needed to submit sworn statements in the form of notarized affidavits.

A law signed by New York Governor Hochul in October 2023, amended the C.P.L.R. to allow affirmations from any person, bringing New York civil practice in line with Federal practice, where unnotarized declarations are used pursuant to 28 U.S.C. § 1746, as well as with numerous states that have already adapted this standard such as Pennsylvania and New Jersey.

The new N.Y. C.P.L.R. § 2106 allows any person to submit an affirmation in lieu of an affidavit, “with the same force and effect” that the affidavit would carry. By submitting an affirmation instead of an affidavit, the need for documents to be signed before a notary public is eliminated. The statute provides that the 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)

As for affirmations signed outside New York State, it appears that affirmations that are in compliance with the § 2106 statute should be considered without the need to comply with the provisions in N.Y. C.P.L.R. § 2309(c) requiring a Certificate of Conformity. Nonetheless, practitioners should proceed with caution until there is appellate authority on this matter.

Another practical concern is how rapidly court clerks and court staff will become aware of the rule change. It is anticipated that there may be some risk that unnotarized affirmations from non-attorneys could be erroneously rejected. However, for the foreseeable future, this new statute is a great procedural tool to simplify the execution of certain documents without the need for a notary public.