Commercial Litigation Update

As previously reported on June 3, 2024, the January 1, 2024 amendments to CPLR 2106 revised the statutory language required for attorney affirmations in New York.

At that time, we cautioned that attorney affirmations relying on the traditional “under the penalty of perjury” language could be deemed defective under the amended statute, which now requires revised language that the statements are affirmed, among other things, “under the penalties of perjury under the laws of New York, which may include a fine or imprisonment.” Since then, as anticipated, courts have begun to strictly enforce the revised requirements, with several rejecting affirmations that fail to incorporate the updated statutory verbiage. However, recent decisions suggest that—at least in some circumstances—such defects may be curable.

By now, most New York practitioners are aware (or at least have heard) of the recent changes to CPLR 2106, which was amended as of January 1, 2024 to allow “any person” to submit an affirmation “in lieu of and with the same force and effect” as an affidavit in an action in New York.

This was a privilege previously reserved for New York attorneys, certain licensed professionals, and those physically located outside the United States. While the majority of the focus understandably has been on the impact of this legislation on litigants and other individuals who are no longer required to submit affidavits, the amendment also has the serious, but often overlooked, consequence of rendering the form of prior New York attorney affirmations ineffective and not properly sworn unless the affirmations contain the new, revised language required by the amendment.