Simplifying Foreign Affidavit Procedures

By Tim Broschardt | Managing Editor

In response to difficulties in procuring admissible sworn statements from witnesses located outside the United States, the New York State Legislature amended NY Civil Practice Law and Rules § 2106. NY CPLR § 2106 now permits witnesses residing outside the United States and its territories to include an affirmation that their written statement is true, rather than have it notarized. The new rule went into effect January 1, 2015.

Under the old requirements, NY CPLR § 2309(c) required an affidavit to be acknowledged by the same means as a deed for real property. The applicable statutes to a deed executed outside New York are NY RPL § 301, which requires a deed be acknowledged by a notary or other public official, and NY RPL § 301-A, which requires a certificate of conformity by a local official to affirm that the document was signed in accordance with local law.

Although the process outlined above is still a valid process for submission of witness statements, NY CPLR § 2106 creates an exception for citizens of foreign nations. This law previously applied only to certain medical and legal professionals, but now has been amended to permit any individual residing outside the United States to simply sign a statement or declaration with an affirmation stating:

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.

Before the rule was revised, courts would not accept statements from witnesses residing outside the United States if they were not notarized.  For example, in Green v. Fairway Operating Corp[1]. the court dismissed a personal injury complaint that relied on a Dominican citizen’s written statement because it lacked the required Certificate of Conformity. If the current version of NY CPLR § 2106 had been in place, the plaintiff’s claim would not have been dismissed for lack of evidence.

In the contemporary United States legal system, a notary public’s primary role is to affirm a document signatory’s identity. This practice helps prevent fraud and is unique to the United States (aside from Louisiana, which largely follows the French civil law system) and some Canadian provinces. Many states require a notary public to merely be an 18-year-old resident of the state who has not committed certain crimes. New York, with one of the strictest regulatory regimes over notaries in the United States, requires a notary to be an adult resident of, or regular employee in, New York who has not been convicted of a disqualifying felony or misdemeanor. Furthermore, the person must demonstrate sufficient knowledge of the relevant law and best practices of a notary through legal education or a written test.

In contrast, notaries outside the United States and Canada draft the legal instruments they notarize and provide advice regarding contracts, wills, and other legal documents in addition to verifying the identities of document signatories. Although specific responsibilities vary by locality, these individuals are often practicing attorneys or other individuals with extensive legal education. These differences in roles and educational requirements make notarization outside the United States and Canada far more difficult. For example, in 2005, 1.3% of Texans were registered as notaries, while notaries only made up .0027% of Mexico City’s population in the same year.[2]

The difficulty of obtaining notarized affidavits outside the United States, particularly for nationals of developing states where access to notary services may be limited, is an unnecessary deterrent. Although the fear of fraud is a valid one, this statute simply permits introduction of evidence that would otherwise be inadmissible under NY CPLR § 2309(c). Instead, this law allows evidence to be introduced and evaluated for its truthfulness and probative value, rather than be disqualified without regard for its substance. This reduces the expense and time involved in drafting a formal affidavit for a foreign national, reducing litigation costs and making New York a more efficient and inviting place to do business.

[1] 72 A.D.3d 613 (1st Dep’t 2010)

[2] Jonathon A. Pikoff & Charles J. Crimmins, Lost in Translation: Texas Notary Public v. Mexico Notario Publico Texas Secretary of State  (June 2015)

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