Home > Journals > St. John's Law Review > Vol. 98 > No. 2
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(Excerpt)
Traditionally, the affidavit has been the foremost source of proof on motions in New York State courts. Effective January 1, 2024, New York Civil Practice Law and Rules (“CPLR”) 2106 was substantially amended to allow any person to submit an affirmation in lieu of an affidavit, “with the same force and effect.” This is the most significant change to the CPLR in the twenty-first century and will impact many areas of civil procedure.
As those who have already grappled with the amendment to CPLR 2106 know, there are now numerous issues relating to the legislation that will need to be addressed by the courts. This is due largely to the fact that the legislature chose not to amend any of the other sixty-two provisions in the CPLR that reference an “affidavit.” Given that the current composition of New York State’s representative bodies is not sufficiently concerned with real procedural reform, we cannot expect any responsible legislative action to be taken to remedy the problem. Therefore, application of the statute in numerous contexts will be left largely to the courts, after lawyers attempt to persuade them with their proposed interpretations.
This Article attempts to provide courts and attorneys with an analysis of the new CPLR 2106 and its interplay with several other provisions in the CPLR. The piece examines some early caselaw from the federal and state trial courts in New York, and several appellate division decisions interpreting the statute. Our focus is on the issues that judges and lawyers will most likely confront in applying and using the statute, and there are many. The examination is well worth the effort, as there is an abundance of cases in which a party’s rights have been lost, jeopardized, or compromised because of a defective affidavit or affirmation. The piece also makes recommendations regarding the legislative process
