Rule 2106 of the CPLR permits a written affirmation, made under penalty of perjury, to be submitted in place of an affidavit, carrying the same legal effect in New York civil proceedings. Since the amendment took effect on January 1, 2024, our office has been closely examining its practical implications. My colleague, Viktoriya Liberchuk, discussed the amendment in her blog post, “Affirmation in Lieu of an Affidavit, Now with the Same Force and Effect,” including its impact on other CPLR provisions that refer specifically to affidavits, the verification of pleadings by affidavit, and responses to interrogatories. These open issues suggest that, while the amendment appears straightforward on its face, its broader procedural impact is still unfolding.
As a refresher, CPLR 2106 was amended to significantly broaden who may submit an affirmation in lieu of an affidavit.
Before the amendment, only certain non-party New York licensed professionals and individuals physically located outside the United States could submit affirmations in lieu of affidavits. The amendment removed those limitations, sparing litigants the time, cost, and inconvenience of obtaining notarization.
While the amendment offers a more flexible mechanism for submitting sworn statements, it has also become the subject of litigation—particularly in the Commercial Division (see e.g. Residential Energy JV LLC v Pinto et al., 87 Misc3d 1235(A) [Sup Ct, Westchester County 2025]; Jun Gao v Coconut Beach/Hawaii LLC et al., 83 Misc3d 1223(A) [Sup Ct, NY County 2025]).
A recent holding by the Justice Court of the Town of Cortlandt in HR Cortlandt LLC v. Kohut, demonstrates that proper adherence to the form and acknowledgement of professional qualifications is essential to ensure the affirmation is accepted by the court.
Background
In Kohut, the Petitioner commenced a holdover tenancy summary proceeding seeking possession of an apartment in Cortlandt, New York, and a warrant of eviction against Respondents Carla A. Kohut and James Deronda.
Respondent Kohut moved to dismiss on several grounds, relying on an attorney affirmation that failed to comply with the requirements of CPLR 2106. In opposition, the petitioner similarly relied on a defective affirmation. Specifically, Respondent’s counsel affirmed only “under the penalties of perjury,” and Petitioner’s counsel used identical language in opposition, omitting the additional language required under the amended statute.
Analysis
The Justice Court of the Town of Cortlandt held that these affirmations submitted by both parties failed to comport with the amended statutory language of CPLR 2106.
The affirmations submitted by both parties’ counsel only stated, “under the penalties of perjury.” The Court noted that while this language was sufficient under the old Rule 2106, it is no longer legally sufficient for purposes of the amended rule. The Court made it clear that while attorneys always have a professional duty to state the truth in papers, “the affirmation under the proposed rule gives attorneys adequate warning of the possibility of prosecution for perjury for a false statement.” Since the amended rule includes the word “shall” within its directive, the language set forth thereafter is mandatory and not merely a suggestion.
While Respondent’s counsel could have cured her defective affirmation through the submission of a reply affirmation containing the requisite language, her reply papers also failed to comport with CPLR 2106. Accordingly, the court held that any facts asserted by either party’s attorney in the subject affirmations were inadmissible and lacked probative value.
Takeaway
The decision in Kohut is a sharp reminder that, under the amended CPLR 2106, form is substance. To remain in compliance with CPLR 2106, it is imperative to insert language that tracks the statute under the affirming attorney’s signature. Failure to include this mandatory language is not a technical defect that can be overlooked; it renders the affirmation inadmissible and devoid of any probative value.