April 8, 2025

Amendment to CPLR § 2106: Affirmations, not Affidavits!

By Laura Trachtman
The first thing that my dad made me do after I was admitted to practice was to register as a notary public with the State.  Why?  Because in order to file sworn documents with the Court, lo those many years ago, said document needed to be witnessed by a notary public. The exception, according to the older version of CPLR § 2106, was for lawyers, doctors, osteopaths, or dentists, all of whom were allowed to affirm, but when our clients needed a document submitted, it had to be notarized.  Hence, my father’s insistence. 

The answer to the obvious question of “what is a notary public?” will be abbreviated, because the history goes back to Cicero, and nobody wants that.  Suffice to say that the notary public basically attests that you are who you say you are and that you have sworn under penalty of perjury that what you are saying is true.  In actuality, the notary public would just check your identification to make sure you are who you say you are, and leave the perjurers to be relegated to the Eighth Circle of Hell, malebolge, which is reserved for those who commit crimes of fraud.  Oh Dante, you never get old.  

Perhaps realizing that trying to find a notary public in today’s day and age is like trying to find someone who uses a typewriter (they exist, but are challenging to locate), the Legislature amended CPLR § 2106 to allow anyone to affirm the truth of a document, not just the aforementioned professionals. Aside from making life a little bit easier for all involved, this amendment was also designed to bring New York Practice more in line with federal practice – a recent trend which shall pop up every so often in these blog posts.  

It’s important to note that just because anyone can now make an affirmation, that privilege must not be taken for granted. For example, in Zhou v. Cent. Radiology, PC, 84 Misc. 3d 410, 418–19, 220 N.Y.S.3d 580, 586–87 (N.Y. Sup. Ct. 2024) (emphasis supplied), the litigants were not as meticulous as they should have been.  The Honorable Tracy Catapano-Fox, addressed in some depth the seriousness of ensuring conformity with the language of CPLR § 2106:  

It is first noted that plaintiff’s expert affirmations failed to comply with the requirements of CPLR § 2106. Plaintiff submitted documents titled “expert affidavit” from Dr. Englander and Dr. Papish, both physicians who were not licensed to practice medicine in New York. While the newly amended statute permits parties to submit affirmations rather than notarized affidavits, plaintiff’s out-of-state experts failed to affirm by the specific language of the statute. Instead, both “affidavits” merely state that the witness hereby affirms under the penalties of perjury, which is not in substantial compliance with CPLR § 2106. (See generally Nelson v. Lighter, 179 A.D.3d 933, 116 N.Y.S.3d 360 [2d Dept. 2020].) This Court recognizes that defendants did not oppose plaintiff’s motion on this ground. However, it is 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. In reviewing the documents submitted, it is clear that they lack compliance with CPLR § 2106 in both form and substance. This error is not harmless or ministerial, as the brief language affirmed to by Dr. Englander and Dr. Papish did not demonstrate their acknowledgement of the import and seriousness of their statements made in the document as required by statute, and therefore cannot be considered by the Court. (CPLR § 2106 Advisory Committee Notes [“While attorney always have a professional duty to state the truth in papers, the affirmation under the proposed rule gives attorneys adequate warning of the possibility of prosecution for perjury for a false statement”].)

However, in Gao v. Coconut Beach/Hawaii, LLC, 83 Misc. 3d 1223(A), 212 N.Y.S.3d 815, at *3 (N.Y. Sup. Ct. 2024) (emphasis supplied), the Honorable Richard Reed, J.H.O., specifically wrote in his Decision and Order granting leave to enter a default judgment dated June 26, 2024, that “[t]he court notes that plaintiff submits with this motion an affirmation of plaintiff dated May 23, 2024, verifying his complaint. CPLR 2106, as amended on January 1, 2024, permits affirmations to be made by “any person” as long as it is stated “to be true under the penalties of perjury.” Because the affirmation is in conformity with the amended CPLR 2106, the complaint constitutes admissible proof for the purposes of this motion.” This is very straightforward:  Because the affirmation is in the correct form as set forth in the statute, the Court accepted it. 

This is a sobering morality tale of what happens to attorneys who do not bother to read the language of the statutes they rely upon.  In today’s age of copy and paste, there is literally no excuse not to take the proper language straight from the statute itself. And in today’s age of “false news” and “deepfake,” the Courts are wise to take potentially perjurious submissions extremely seriously.  

In sum, the amendments to CPLR § 2106 making it easier to submit documents from everyone are most welcome, but it appears as though the courts are on the lookout for those who submit papers failing to comply with the amendments. For that reason, it may be wise to have the text of CPLR § 2106 bookmarked until you’re able to memorize it.  

Special thank-you to Professor Michael Hutter of Albany Law School and his wonderful CLE, 2025 CPLR Update, held through the auspices of the New York State Academy of Trial Lawyers, which I find to be a wonderful organization. Prof. Hutter drew special attention to this statute in that program, inspiring me to write this blog piece.