Furtow v Jenstro Enters., Inc., 2010 NY Slip Op 05987 (2d Dept. 2010)
“Here, Ching submitted an affidavit which recited that he was “duly sworn” and contained a jurat stating that the affidavit was “sworn to before” a notary public, who signed and stamped the document. On the record presented here, the form of the affidavit was adequate (see Sirico v F.G.G. Prods., Inc., 71 AD3d 429; Sparaco v Sparaco, 309 AD2d 1029, 1030; Feinman v Mennan Oil Co., 248 AD2d at 504; Collins v AA Truck Renting Corp., 209 AD2d at 363).”
The affidavit at a minimum must say this: John Doe, DULY SWORN….
Sworn to before
notary public
[notary stamp]
11 Responses
The langauge is supposed to awaken the consciousness that a lie will have repercussions. It was originally thought of in religious terms but early on — real early on like the 1920s — courts held that it did not have to awaken a religous consciousness but any sort of moral or ethical quandry caused by a lie. (I cite the above case law and it is old) In other words it has to tell you that you are not supposed to lie.
Swear + lie = perjury
An affidavit still requires an oath — swear or affirm –before a notary and a handwritten signature witnessed by the notary. I spoke with the Department of State about that. I am getting a written opinion. Some idiots still confuse or attempt to pass of the requirements of an acknowledgement as being adequate for an Affidavit.
I see some heavy litigation brewing in that area.
Are you referencing an acknowledgment in the form that is required for a deed to be recorded?
Yes but a whole range of other matters too. There are a host of documents where all that is required is that the notary verify that John Doe signed the document without any need for a formal “swearing” or “affirming” to tell the truth. All the notary stamp is supposed to prove is that John Doe is known to the notary — i.e. he shows I.D. — as John Doe and this is his signature.
Some morons think or at least argue that a Peer Review Report that is prepared by a doctor — thereby merely affirmed without the need for a notary — is subject to the Electronic Signature law.
That’s like an electronic signature on an attorney affirmation or a big fat stamp.
You know them J.T.
Of course the caselaw says not — as well as the rule itself. It’s applicable to things like traffic tickets. etc. but it should not be since a traffic ticket is a simplified information.
But an attorney is subject to rule 130, thus the affirmation must be holographic. Otherwise, the Electronic Signature Act and the State Technology law allowing electronic signatures would apply to attorney affirmations. Someone I know has an omnibus motion challenging the electronic signature affirmation presented in a simplified information. The lead case on point is Vista v. Travelers.
I don’t see how that is possible J.T. unless you show me. I am well aware of Rule 130. Say there is no rule 130. The Electronic Signature Act and the State Technology Law would not allow an attorney’s affirmation to be electronic. If that were so J.T. an M.D.’s affirmed Peer Review Report — the one that does not require a notary just like our affirmations — could be electronic; and we know (at least most of us) that this is not the case. See your case or one of the Vistas. The same policy applies.
An attorney is affirming the truth under penalty of perjury just like a so called M.D. that signs a Peer Review Report. Where does it say that this could be Electronic. Not the statute.
I know an attorney’s word is not worth the ink that signs his or her name but sign his affirmation he must.
I think an electronic signature is proper on a physician affirmation. But, a foundation in accordance with the ESA and the NYSTL must be laid. The reason Rogy and the Vistas went the way they did was because there was no proper foundation for the electronic signature. Vista and Rogy have pretty much taught us what is necessary to lay the appropriate foundation.
The purpose of the ESA and NYSTL was to encourage electronic commerce. The legislative intent and practice commentaries memorialize that point. Assuming what you are saying is true, then the act to a large extent would be pointless.
I thus respectfully disagree with your analysis.
The statutes wanted to aid ministerial acts of commerce. Swearing that someone does not need any further medical treatment although ministerial for an insurance company is not ministerial commerce.
Mind you anything and everything is related to commerce. Witness the New Deal and Civil Rights legislation that drew its existence from the commerce clause of the constitution.
But swearing without signing — no … no … I am looking forward to a case wherein someone lays a foundation for an electronic signature on a Peer Review Report. M.D. or not it is still an Affidavit.
I respectfully state that you have read to much into Vista and Rogy.
Ray, I would bet a nice sum of money that I am right on this one.
Which issue. The lawyer affirmation or the M.D. Peer?
I never bet money because if I lose I will not pay and no one is tough enough to make me pay.
Just give me chapter and verse. Give me the cite and I’ll look it up. If the law supports your position I will so state here on The Defender with commentary if appropriate.
Ray,
What i was saying is that the law will support my viewpoint. The chapter and verse, when written, will find its way on here!
Jason now we know what you are saying. Do me a favor. Some people say that you are just a bright intelligent intellectual with a brilliant future that does very well by his clients; yet a gutless wonder. Well they do not say the last part. I added it.
But anyway when this issue comes before you promise me you’ll let me know in advance so that I may have the opportunity to volunteer my bro bono services and write the papers; all the way to the Ct of Appeals.
Here is the bet. And I’ll pay up if I lose — dinner at the winner’s favorite restaurant. If I lose and you go ultra expensive I am not eating — I’ll watch; you can do the same.