Officers of the New York County Lawyers Association Support S. 5162 to Bring New York’s Practice into Conformity with Federal Rule

The Officers of the New York County Lawyers Association (NYCLA), today issued the following statement:

NYCLA Officers express their support for S. 5162, proposed by the Office of Court Administration (OCA” and introduced by Senate Judiciary Chair Hoylman-Sigal.^[1]  NYCLA President Vincent Chang stated, “We applaud the efforts of Senator Hoylman-Sigal which have resulted in the passage of this legislation in the judiciary committees of both houses (A 5772 in the Assembly).  If adopted, this legislation would amend CPLR 2106 to allow litigants in civil cases to swear to a statement under penalty of perjury without having to have a document notarized.”

NYCLA Officers supports this legislation for the following reasons:

First, this legislation would bring New York’s practice into conformity with the federal rule that has been in force since 1976.  The federal provision, 28 USC § 1746, permits unsworn declarations under penalty of perjury, rather than sworn notarized statements.  Moreover, rules similar to the federal rule prevail in at least 22 states.^[2]  We welcome efforts to harmonize NY law with federal law, particularly when such harmonization would alleviate the current burden imposed on New York litigants and litigators by the current notarization requirements. ^[3]

Second, the proposed change to the CPLR would enhance access to justice. As the Commission to Reimagine the Future of New York Courts correctly puts it:

“The requirement that legal documents be notarized is a significant and unnecessary barrier to access to the courts and to justice for many low-income people and should be eliminated. Often, it’s the typical access issues – clients do not have transportation or childcare to get to a notary and may have to take unpaid time off from work to find one. In rural communities, notaries are few and far between and because of the nature of smaller communities – everyone knowing everyone – confidentiality is also an issue. Petitioners often need to go to a bank or to the court itself to find a notary. In Black communities, banks, the most reliable place to find a notary, are significantly harder to access”^[4]

NYCLA Officers agree that repeal of the notarization requirements would be a simple way to improve access to justice in communities where access to notaries can be an issue.  And such access may become increasingly more limited as attorneys and others refuse to perform notarizations as a result of the new rules imposed on notaries.  See n.3, supra. 

Third, we believe that potential objections to this legislation are unfounded.  It might be argued that the requirement of notarization increases the likelihood that statements and affirmations will be truthful.  But there is no empirical evidence for this view:

The successful use of unsworn declarations for over forty years in Federal courts and the courts of many other states, not to mention the use of unsworn declarations as currently permitted by CPLR 2106, provides ample evidence that mere elimination of notarization will not reduce the truthfulness of witness statements filed with the New York courts.  Notaries do not investigate the truth of the facts being sworn to.  Unfortunately, many notaries do not even go through the formality of administering an oath.^[5]         

We also note that the proposed legislation affects only statements and affirmations submitted in litigation and does not change existing notarization requirements for legally operative documents such as will and deeds.  Thus, any concern regarding fraud in those other areas is not a reason to reject this legislation.

Accordingly, NYCLA Officers support the enactment of S 5162 and the amendment of CPLR 2106 to align it with 28 USC § 1746 and to allow litigants in civil cases to swear to a statement under penalty of perjury without having to have a document notarized.

About This Statement
This statement was approved for publication by NYCLA’s Officers. This statement has not been approved by the NYCLA Board of Directors and does not necessarily represent the views of the Board.

About the New York County Lawyers Association

The New York County Lawyers Association (www.nycla.org) was founded in 1908 as one of the first major bar associations in the country that admitted members without regard to race, ethnicity, religion or gender, and has a long history of supporting the rights of LGBTQ+ people. Since its inception, NYCLA has pioneered some of the most far-reaching and tangible reforms in American jurisprudence. For more information on NYCLA please visit nycla.org.

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[1] https://www.nysenate.gov/legislation/bills/2023/s5162

[2] https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/unsworn-affirmations-expansion-oca

[3] We note that this burden is only enhanced by the recent rules changes in notarization which increase burdens on all notarizations.

https://www.nycla.org/resource/statement-letter/new-york-county-lawyers-association-supports-partial-repeal-of-section-135-c/

[4] https://empirejustice.org/wp-content/uploads/2022/06/EJC-Testimony-on-Pandemic-Practices-Commission-to-Reimagine-the-Future-of-NY-Courts.pdf at p. 85.

[5] https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/unsworn-affirmations-expansion-oca