PL 210.45 verification is a sufficient affidavit

New York’s courts continue to address the complexities of what constitutes sufficient sworn testimony in civil litigation. The state’s strict adherence to traditional affidavit requirements often creates procedural hurdles for litigants, while simultaneously accepting alternative forms of verification in certain circumstances. This tension becomes particularly apparent when courts accept statements verified under Penal Law § 210.45 as adequate evidence to raise genuine issues of material fact.

Penal Law § 210.45 defines “taking a false written statement” as a criminal offense applicable to unsworn statements made under penalty of perjury. When individuals sign statements certifying their truth under this statute, they face criminal liability for false statements equivalent to that imposed for perjury. This criminal penalty theoretically provides the same guarantees of truthfulness as traditional oath-taking before a notary public.

Yet New York simultaneously maintains CPLR 2106, which permits unsworn declarations but only for papers “not requiring an affidavit.” The courts have interpreted this provision restrictively, often requiring formal notarized affidavits for summary judgment motion papers. This creates an apparent inconsistency: statements verified under Penal Law § 210.45 can defeat summary judgment motions, yet CPLR 2106 declarations frequently cannot.

The distinction between various forms of sworn statements—whether traditional affidavits under CPLR or statements verified under Penal Law provisions—reflects broader questions about modernizing procedural requirements. While some jurisdictions have streamlined these processes, New York maintains its preference for formal affidavits, even as courts demonstrate flexibility in accepting alternative verification methods.

Case Background

In Gonzalez v. Ayala, a motorcycle accident case, the defendants sought summary judgment on their motion to dismiss. To establish factual disputes about how the accident occurred, defendants submitted several witness statements. Critically, these statements were not traditional notarized affidavits but rather were verified pursuant to Penal Law § 210.45. One such statement indicated that the defendants’ vehicle had “stop[ped] short at green light” and “the motorcycle … had no time to stop or maneuver.”

The issue on appeal was whether these Penal Law § 210.45 verified statements carried sufficient evidentiary weight to raise triable issues of fact that would defeat any potential summary judgment motion by plaintiff. The Second Department reviewed whether courts should accept such alternative verification methods as equivalent to traditional affidavits for purposes of creating factual disputes.

Jason Tenenbaum’s Analysis:

Gonzalez v Ayala, 2016 NY Slip Op 05626 (2d Dept. 2016)

“In support of their motion, the defendants submitted, inter alia, an affidavit from the defendant driver, and various witness statements verified pursuant to Law] Penal Law § 210.45, which presented conflicting evidence as to how the accident occurred, including a statement that the defendants’ vehicle “stop short at green light the motorcycle … had no time to stop or maneuver.”

In a state that still holds the affidavit so near and dear, I am amused when I see PL 210.45 statements sufficient to raise issues of fact. They should allow everyone to make CPLR 2106 statements in this state. We are so antiquated in that regard.

Legal Significance

The Second Department’s decision reflects New York’s paradoxical treatment of sworn statements in civil litigation. Courts accept Penal Law § 210.45 verified statements—which are unsworn declarations carrying criminal penalties for falsity—while simultaneously rejecting CPLR 2106 declarations that impose identical criminal liability. Both methods subject declarants to prosecution for making false statements, yet only the Penal Law verification receives consistent judicial acceptance.

This inconsistency stems from statutory interpretation rather than logical policy considerations. CPLR 2106 explicitly applies only to papers “not requiring an affidavit,” and courts have determined that summary judgment opposition papers do require affidavits. By contrast, Penal Law § 210.45 contains no such limitation, making it acceptable across broader contexts.

The practical effect is that police reports, accident reports, and similar documents containing Penal Law § 210.45 verifications can create triable issues of fact in civil litigation. This gives defendants a powerful tool to defeat summary judgment motions without incurring the expense of obtaining notarized affidavits from all witnesses. The criminal penalties for false statements under Penal Law § 210.45 provide sufficient guarantees of reliability to satisfy due process concerns.

Practical Implications

Attorneys defending summary judgment motions should consider whether existing police reports, accident reports, or other documents contain Penal Law § 210.45 verifications. These documents may provide a cost-effective alternative to obtaining formal affidavits from witnesses, particularly when witnesses are difficult to locate or unwilling to cooperate with formal affidavit preparation.

However, counsel should not assume that CPLR 2106 declarations will receive similar treatment. For critical motion papers, traditional notarized affidavits remain the safest approach. The distinction between acceptable Penal Law verifications and potentially problematic CPLR 2106 declarations requires careful attention to the specific statutory language and judicial interpretations.

The decision also highlights broader issues with New York’s approach to verification procedures. Other jurisdictions have modernized their rules to accept unsworn declarations more broadly, recognizing that criminal penalties for false statements provide adequate safeguards. New York’s continued insistence on formal affidavits in most contexts creates unnecessary expense and procedural complexity without corresponding benefits.

Key Takeaway

The Second Department’s acceptance of Penal Law § 210.45 verified statements as sufficient evidence demonstrates an inconsistency in New York’s approach to sworn testimony. While the state maintains strict traditional affidavit requirements, courts will accept these alternative verification methods to establish factual disputes, highlighting the need for procedural modernization in civil litigation. Practitioners should leverage this ruling by utilizing existing Penal Law § 210.45 verified documents when available, while recognizing that traditional affidavits remain necessary for most summary judgment submissions.