Navigating the Impact of the 2024 Amendment to N.Y. C.P.L.R. §2106

Picture this: You’re sitting in your office checking your email for the third time to see if your client returned a notarized affidavit that needs to be e-filed by end of day. While time is ticking, you wonder how something so routine can suddenly feel so urgent.

After not hearing back for another hour, you give your client a call. Your client says they have been waiting at their local bank for thirty minutes for the notary to return from a lunch break.

Fortunately, scenarios like this have largely been extinguished thanks to the game-changing amendment to N.Y. C.P.L.R. §2106. Effective Jan. 1, 2024 (the 2024 Amendment), allows any person to submit an affirmation under penalty of perjury in lieu of a notarized affidavit.

Prior to the 2024 Amendment, this privilege was limited to non-party attorneys and licensed health care practitioners in New York State. See N.Y. C.P.L.R. §2106 (effective Oct. 25, 2023, to Dec. 21, 2024).

This article will provide an overview of the history of N.Y. C.P.L.R. §2106, the pros and cons of the 2024 Amendment, an analysis of recent case law that illustrates New York courts’ interpretation and application of the amended statute, and best practices with respect to drafting affirmations in compliance with the 2024 Amendment.

Earlier Iterations of Section 2106

The first version of N.Y. C.P.L.R. §2106, effective Sept. 1, 1963, permitted non-party attorneys in the State of New York to use affirmations in lieu of affidavits when subscribed and affirmed “to be true under the penalties of perjury.” N.Y. C.P.L.R. §2106 (effective Sept. 1, 1963, to 1973); N.Y. C.P.L.R. 10005.

The original intent of this statute was “to save an attorney appearing in a civil action the trouble of taking an oath where he must presently make an affidavit or verification of a paper to be served or filed in the action.” Fitzgerald v. Washington, 80 Misc. 2d 861, 868, 365 N.Y.S.2d 598 (Civ. Ct. 1975) (citing NY Legis Doc, 1962, No. 8, p. 206).

A decade later, the statute was amended to extend the privilege to non-party physicians, osteopaths, and dentists. N.Y. C.P.L.R. § 2106 (effective 1973 to Dec. 31, 2014).

On Jan. 1, 2015, the statute was further amended and restructured into two subsections. Subsection (a) contained the same language as the predecessor statute while subsection (b) extended the privilege to any person located outside of the United States with a requirement that the affirmation 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)

N.Y. C.P.L.R. §2106(b) (effective Jan. 1, 2015, to Oct. 24, 2023).

On Oct. 25, 2023, Governor Hochul signed into law two amendments to the statute – one effective that same day and the 2024 Amendment, which became effective Jan. 1, 2024.

The first amendment reworded subsection (a) to apply to non-party attorneys and any licensed health care practitioner (as opposed to only physicians, osteopaths, and dentists). N.Y. C.P.L.R. §2106 (effective Oct. 25, 2023, to Dec. 21, 2024). The first amendment has since been superseded by the 2024 Amendment.

The 2024 Amendment provides that a “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.” N.Y. C.P.L.R. §2106. The statute requires 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)

The 2024 Amendment largely tracks the language set forth in subsection (b) of the predecessor statute, with an acknowledgement of “the laws of New York, which may include a fine or imprisonment.” N.Y. C.P.L.R. §2106 (b) (effective Oct. 25, 2023, to Dec. 21, 2024).

Pros and Cons of the 2024 Amendment

The 2024 Amendment is beneficial because it not only eliminates the obstacle of having to plan for or find a readily available notary to notarize an affidavit, but it expands N.Y. C.P.L.R. §2106 to any person, including parties to an action.

Additionally, the 2024 Amendment promotes consistency with federal practice, which has embraced the use of unsworn declarations since 1976. See 28 U.S.C. §1746.

On the other hand, there is a potential risk that elimination of the notarization process may open the floodgates to fraudulent statements. As explained by the National Notary Association, the notarization process “is the official fraud-deterrent process that assures . . . a document is authentic, and can be trusted.” What is Notarization, National Notary Association.

Nevertheless, considering that the 2024 Amendment is still in its nascent stage, and cases are developing concerning its application, it remains unclear whether the potential risk will materialize.

Recent Case Law and Best Practices

Recent cases serve as a guide to best practices in drafting affirmations in accordance with the 2024 Amendment.

In R.F. v. L.K., 82 Misc. 3d 1221(A), 207 N.Y.S.3d 435 (Sup. Ct. Westchester Cnty Apr. 4., 2024), the Supreme Court of Westchester County rejected the defendant’s affirmation stating that he “affirms the following under the pains and penalties of perjury” because it did not substantially reflect the language in the 2024 Amendment insofar as there was “no acknowledgement of the laws of New York or the possible penalties of fine or imprisonment if the statements made therein are not true.”

In Grandsard v. Hutchison, No. 153605/2024, 2024 WL 1957086, at *1 (Sup. Ct. N.Y. Cnty. Apr. 26, 2024), the Supreme Court of New York County made clear that the language of the 2024 Amendment extends to attorney affirmations.

In Grandsard, the court rejected petitioner’s attorney’s “Verification/Affirmation” that merely affirmed “under the penalty of perjury”. The court explained that the purpose of including language acknowledging the laws of New York and the possibility of fines or imprisonment is for a witness to appreciate the gravity of their factual account.

Similarly, in Zhou v. Cent. Radiology, PC, 84 Misc. 3d 410, 419, 220 N.Y.S.3d 580, 587 (Sup. Ct. Queens Cnty 2024), the Supreme Court of Queens County rejected two expert affirmations that merely affirmed “under penalties of perjury.” In doing so, the court noted that it was incumbent on the Court to uphold the integrity of the laws of New York and ensure compliance by all parties.

Further, the amendment to the statute was not made in an effort to lessen the seriousness of the affirmation and the consequences of making false statements, but instead was meant to reduce the burden of seeking a notary public to obtain a properly sworn affidavit. (Holding the error was “not harmless or ministerial” because the language in the affirmations did not demonstrate the experts’ “acknowledgement of the import and seriousness of their statements”).

The Supreme Courts in Kings County and the Bronx, however, have been more forgiving when with the failure to follow the language set forth in the 2024 Amendment and have relied on N.Y. C.P.L.R. §2001, which allows them to (1) permit a party to correct a mistake, omission, defect, or irregularity; or (2) disregard any mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced. See MTGLQ Invs., LP v. Mendoza, 85 Misc. 3d 1227(A) (Kings Cnty Civ. Ct. 2025) (disregarding respondent’s failure to follow the form required by N.Y. C.P.L.R. §2106 pursuant to N.Y. C.P.L.R. §2001 since the “mistake causes no prejudice to Petitioner”); 1245 Stratford, LLC v. Osboume, 84 Misc. 3d 1228(A) (Bx. Cnty. Civ. Ct. 2024) (same).

While the 2024 Amendment may relieve the burden of having to notarize a document, it is important to not overlook the language provided in the Amendment. To avoid a defective affirmation, attorneys should update the language in their form affirmation to mirror the language set forth in the 2024 Amendment.

While failure to do so in certain courts may not prove fatal, it is recommended that attorneys not rely on the discretion of the deciding court and instead simply conform to the strictures of the 2024 Amendment. Further, if there is any doubt as to the efficacy of an affirmation, one can still resort to using a notarized affidavit to avoid any confusion.