Using Unsworn Affirmations Instead of Affidavits in New York Legal Practice

According to the New York Civil Practice Law & Rules, an attorney's affirmation does not need to be notarized in New York, as long as it is subscribed and affirmed by the attorney to be true under the penalties of perjury. CPLR 2106(a).

Such an affirmation can be served or filed in the action in lieu of and with the same force and effect as an affidavit. Id.

However, this rule only applies to attorneys admitted to practice in the courts of the state, or physicians, osteopaths or dentists authorized by law to practice in the state, who are not parties to the action. Id. The rule does not apply to all "health care practitioners." See NY Assembly Bill A784A & Senate Bill S887 from the 2019-2020 Legislative Session (proposing to "change[] the current reference in existing provisions from 'physician, osteopath or dentist' to 'health care practitioner'").

For other persons who are physically located outside the United States or its possessions, they can also use an unsworn affirmation instead of an affidavit, but they must include a specific verbiage set forth in CPLR 2106(b) acknowledging the perjury penalties and stating their location:

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)

See Thomas F. Gleason, Affirmations and Declarations in New York Practice, NYLJ, Sept. 26, 2014 ("discusses a recent amendment to CPLR 2106, which previously allowed unsworn affirmations instead of affidavits only by certain professionals, but now allows New York courts to consider unsworn affirmations by any person physically outside the United States, where there may be no clear analog of the notary, or where there are religious, social or bureaucratic impediments to obtaining a sworn statement for extraterritorial use."); CPLR No Longer Requires Affidavits from Foreign Witnesses, Schlam Stone & Dolan LLP, Jan. 7, 2015.