COMMITTEE ON CIVIL PRACTICE LAW AND RULES

REPORT NO. 72 June 10, 1997

A. 2212 By: M. of A. Griffith

Assembly Committee: Codes

Effective Date: 1st day of January next

succeeding the date on

which it shall have become

a law

AN ACT to amend the civil practice law and rules and the penal law, in relation to unsworn affirmation of truth of statement under penalty of perjury and to making a punishable false written statement in a civil action a class E felony

LAW AND SECTION REFERRED TO: CPLR R2106

REPORT PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND RULES (#23)

THIS BILL IS APPROVED (WITH SUGGESTED MODIFICATIONS)

The proposed bill would permit all persons to substitute an affirmation for an affidavit in civil judicial proceedings. Currently CPLR 2106 permits only attorneys, physicians, osteopaths or dentists (who are not parties to an action) to affirm a statement to be true under the penalties of perjury to be "filed in the action in lieu of and with the same force and effect as an affidavit." Such unsworn declarations are permitted in federal court. See 28 U.S.C. §1746.

The bill would amend CPLR 2106 to require that the signer acknowledge that it is signed under penalties of perjury; that if it is knowingly false, the signer is subject to prosecution for perjury; and that if convicted, as signer, may be subject to fine or imprisonment. The bill would also amend the penal code to make the false affirmation a Class E felony.

The purpose of the bill is to eliminate the inconvenience of locating a notary public. Whether this is a major problem is open to some debate, but there are situations where a notary public may not be readily accessible to the affiant and locating one would be inconvenient.

The more important issue is whether the new form of affirmation assists in making sworn written statements submitted in Court more truthful. An affidavit is a statement sworn before a notary public, who, as an officer empowered to administer "in a form calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs." CPLR 2309(b). It is questionable how many slumbering consciences have been awakened before an affidavit is signed. Few notaries, in practice, actually swear the affiant, and many affiants are unaware of the consequences of a false affidavit. There is nothing in the form of a standard affidavit that would alert the signer that a falsehood in the affidavit could be perjury.

The proposed affirmation, on the other hand, contains language that makes absolutely clear the seriousness of the affirmation. The combination of the words "perjury," "convicted" and "imprisonment" should be a sufficient wake-up call for any conscience capable of being awakened. The proposed bill, therefore, would probably promote greater truthfulness in statements submitted in court.

The Committee notes, however, that the bill, as amended, is flawed in that it does not require the affirmant to affirm the date on which it was signed. Often, the dating of an affidavit can be critical. For example, in an affidavit of service, an affidavit dated on the same day of the service may have more credibility than an affidavit that is made out after a substantial passage of time. An affidavit requires that the notary sign and date the affidavit. There is no requirement in the bill that the affirmant sign and date the affirmation.

Thus, we recommend that the proposed statement at the end of the affirmation should be modified, as follows, to confirm the affirmant's oath that he/she signed the document on a particular date:

"I AFFIRM UNDER THE PENALTIES OF PERJURY THAT THE FOREGOING IS TRUE AND THAT THIS AFFIRMATION WAS SIGNED BY ME ON [INSERT DATE SIGNED]. IF THE FOREGOING IS KNOWINGLY FALSE, I MAY BE PROSECUTED FOR THE CRIME OF PERJURY AND, IF CONVICTED, MAY BE SENTENCED TO FINE OR IMPRISONMENT."

The Committee notes that the dating of an unsworn statement is an explicit requirement in federal court under 28 U.S.C. § 1746.

For the above reasons, this bill is APPROVED, with suggested modification.

Person Who Prepared the Report: David L. Ferstendig, Esq.

Chair of the Committee: Paul H. Aloe, Esq.