Paul, Professor Connor wrote about this recently, go to his website at
https://www.albanylaw.edu/faculty/faculty-directory/patrick-connors
and look at his publications for 2 law journal articles he authored. He recommends filing an amended affirmation with the appropriate language asap, and seeking to excuse the error (if there really is one) under another section of cplr regarding fixing a mistake in absence of prejudice.
You can also argue that the affirmation you used substantially conforms with the new cplr provison (the language in 2106 says substantial compliance is ok). An affirmation made under penalty of perjury and submitted in support of a motion arguably is consistent with the new language that the deponent is aware of the penalty of perjury and knows it is being submitted to a court.
A shining example of the legislature fixing something that wasn’t broken but we have to get used to change I guess.
????
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Date: 8/9/2024 8:34:56 PM
Hello everyone, has anyone had an issue with an expert affirmation in a motion for summary judgment where the exact language of CPLR 2106 was not included which says that there should be a statement that the affirmation is done knowing that there may be a fine or imprisonment as a penalty for perjury?
If so, was there an attempt to cure and what was the result.
Thanks.
Paul E. Walker
Attorney at Law
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