Legislation Report

COMMITTEE ON CIVIL PRACTICE LAW AND RULES

REPORT NO. 117                                                                                            May 25, 2000

S. 3435                                                                                                 By:      Senator Volker
A.8535                                                                                                By:       Committee on Rules                                                                                          Senate Committee:    Codes
                                                                                   Assembly Committee:     Codes 
                                                                                               Effective date:    1st day of January next                                                                                                                            succeeding the date on which it                                                                                                                            shall have become law

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

LAW AND SECTIONS REFERRED TO:  Rule 2106 of the civil practice law and rules, as amended by judicial conference proposal number 3 for the year 1973

REPORT PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND RULES (#39)

THIS BILL IS APPROVED

            The proposed bill would permit all persons to substitute an affirmation for an affidavit in civil judicial proceedings.  Currently, CPLR 2106 permits only the statements of New York licensed attorneys, physicians, osteopaths or dentists (who are not parties to an action), which are affirmed as “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.”  Unsworn declarations have been permitted in federal court since 1976. See 28 U.S.C. §§1746.

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

            The purpose of the bill is to eliminate the inconvenience of having to appear before a notary public in order to submit a sworn statement to the court. 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 deponent and locating one would be inconvenient.

              The more important issue is whether the new form of affirmation assists in making sworn written statements more truthful.  An affidavit is a statement sworn before a notary public, who is required to administer an oath "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(a) and (b).  However, it is doubtful that many slumbering consciences have been awakened by the official acts of the notary.  Few notaries, in practice, actually administer an oath before the affidavit is signed and many affiants are unaware of the consequences of making 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 proposal, on the other hand, requires an affirmation to contain language that makes absolutely clear the gravity of the circumstances under which it is made. The combination of the words "perjury," "convicted" and "imprisonment" should be a sufficient wake-up call and put the signer on notice of the untoward consequences of a false declaration.   The proposed bill, therefore, would promote greater truthfulness in statements submitted to the court.

            In addition, the bill requires the deponent 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. Moreover, the dating of an unsworn statement is an explicit requirement in federal court under 28 U.S.C. §§ 1746.   As such, affirmations made under the proposed law will contain the necessary formalities typified by affidavits in state courts and declarations in federal courts.

For the above reasons, this bill is APPROVED.

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

Chair of the Committee: Steven M. Critelli, Esq.