Report in Support of the Unsworn Affirmations Expansion

BILL INFORMATION

A.5772 (AM Lavine) / S.5162 (Sen Hoylman-Sigal) – amends the civil practice law and rules, in relation to an affirmation by any person, wherever made, in a civil action.

OUTCOME

Signed by the Governor, Chp. 559 – October 25, 2023

REPORT

REPORT BY THE COMMERCIAL LAW AND UNIFORM STATE LAWS COMMITTEE, COUNCIL ON JUDICIAL ADMINISTRATION, LITIGATION COMMITTEE AND STATE COURTS OF SUPERIOR JURISDICTION COMMITTEE

A.5772 (M. of A. Lavine)
S.5162 (Sen. Hoylman-Sigal)

AN ACT to amend the civil practice law and rules, in relation to an affirmation by any person, wherever made, in a civil action

THIS BILL IS APPROVED

The proposed legislation would permit the use of what are called “unsworn affirmations”[1] by any person in state court litigation under penalty of perjury in the place of sworn affidavits or affirmations notarized by a notary public in a civil action or proceeding wherever made and for all purposes.  This proposal is consistent with Federal practice, which has permitted the use of unsworn declarations under 28 U.S.C. § 1746 since 1976. In 2008, the ULC promulgated the Unsworn Foreign Declarations Act, which has been adopted in 25 states, including New York.[2]  The Uniform Unsworn Declarations Act, since its promulgation in 2016, has been enacted in Colorado, Pennsylvania, Utah and Washington and has been introduced in Wisconsin.[3]  This amendment has been previously recommended and endorsed by the Office of Court Administration.[4]

Unsworn declarations are already accepted under current New York law in certain limited circumstances.  Members of only a few professions (attorneys, physicians, osteopaths and dentists) may use an unsworn declaration made within the United States in place of a notarized affidavit or affirmation (CPLR 2106 (a)).  All persons may use an unsworn declaration made outside the jurisdiction of the United States (CPLR 2106 (b)).  The limitations of CPLR 2106 (a) create significant difficulties for litigants and non-party witnesses, particularly the unrepresented and those residing outside cities, who do not have ready access to a notary or who may require notarial services outside normal business hours.  The requirements of CPLR 2106 (a) also impose undue burdens on the offices of the county clerks and courts who are often called upon by poor and pro se litigants to notarize affidavits or affirmations.[5]  As witnessed during COVID-19, the burdens of CPLR 2106 (a) become all the more acute during times of crisis or emergency.

PROPOSED REPLACEMENT OF CPLR 2106

To alleviate these problems and harmonize New York practice with that of the Federal courts and many other jurisdictions, this bill proposes the replacing existing CPLR 2106. This amendment would permit all persons to use unsworn declarations, whether made within or outside the United States, in place of notarized affidavits or affirmations in New York state court litigation.

A number of potential objections to the proposed amendment have been raised.  These include that it may encourage the filing of untruthful witness statements, that it will eliminate the use of affidavits altogether, or that it is “anti-notary”. Upon consideration, however, it appears that these concerns are without substance.

TRUTHFULNESS

The successful use of unsworn declarations for over forty years in Federal courts and the courts of many other states, not to mention the use of unsworn declarations as currently permitted by CPLR 2106, provides ample evidence that mere elimination of notarization will not reduce the truthfulness of witness statements filed with the New York courts.  Notaries do not investigate the truth of the facts being sworn to.  Unfortunately, many notaries do not even go through the formality of administering an oath.  If anything, the incentive to tell the truth is even greater when an affirmation is expressly made under penalty of perjury.  A false statement made with intent to mislead the court will constitute perjury in the second degree, a Class E felony punishable by up to four years imprisonment.  See Penal Law 70.00(2) (e), 210.00(1) and (5), 210.10.

ELIMINATION OF AFFIDAVITS OR THE NEED FOR NOTARIES

The proposed amendment of CPLR 2106 will not eliminate the use of notarized affidavits and affirmations or the need for notaries.  Amended CPLR 2106 would merely make unsworn declarations an alternative method of presenting a written witness statement in New York state court litigation.  Nor would the proposed amendment eliminate the need for notarization when a declarant is required by other law to establish the declarant’s identity (for example, the witness at a deposition (CPLR 3113(b)) or the authenticity of a document (for example, CPLR 3116), or to take an oath of office.  Significantly, we understand that two leading notarial associations, the American Notarial Association, and the National Society of Notaries, have determined that they do not object to enactment of laws permitting the use of unsworn declarations.

CONCLUSION AND RECOMMENDATION

For the reasons stated, the New York City Bar Association recommends that the proposed amendment to CPLR 2106 be enacted into law.

Commercial Law & Uniform State Laws Committee
Curtis C. Mechling, Chair

Council on Judicial Administration
Fran R. Hoffinger, Chair

Litigation Committee
Seth D. Allen, Chair

State Courts of Superior Jurisdiction Committee
Amy D. Carlin, Chair