On June 6, 2024, the First Department issued a decision in Great Lakes Ins. SE v. American S.S. Owners Mut. Protection & Indem. Assn. Inc., 2024 NY Slip Op. 03083, holding that an affirmation was inadmissible because it failed to use the language required by CPLR 2106, explaining: “Gourdomichalis’ affirmation, which he submitted to support his claim that the court lacked personal jurisdiction, was inadmissible as it did not contain the language required by CPLR 2106.” (Internal citations omitted).
For background, here is what the trial court said regarding the wording of the affirmation:
First, defendants’ affirmations are inadmissible (see Docs 52-53). When this motion was filed, CPLR 2106 stated:
“(b) The statement of any person, when that person is physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:
I affirm this _ day of , , under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.”
As of January 1, 2024, CPLR 2106 has been updated to stated:
“The statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:
I affirm this _ day of , , under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.”
Here, the Gourdomichalis defendants state in their unsworn affirmations that they, “under the penalties of perjury under the laws of the United States pursuant to 28 U.S.C. § 1746, affirm that the following is true and correct.” That is not sufficient under either version of CPLR 2106. Moreover, the exhibits annexed to Efstathios’s affirmation are unauthenticated and inadmissible.