The Minimum That an Affidavit Must Contain in New York

Key Takeaways

• In Furtow v Jenstro Enterprises, the Second Department held an affidavit adequate where it recited the affiant was “duly sworn” and contained a jurat stating it was “sworn to before” a signing, stamped notary public.
• Those two elements — the sworn recital and the jurat — are the irreducible minimum of affidavit form in New York.
• Defective affidavits can sink summary judgment motions, so the form should be checked before filing, not after opposition papers point out the problem.
• Since January 1, 2024, amended CPLR 2106 lets any person submit an affirmation instead of an affidavit, sidestepping many notarization disputes — but affidavits already in the file still must satisfy the traditional standard.

Why Affidavit Form Still Decides Motions

Affidavits serve as crucial evidence in New York litigation, but their effectiveness depends entirely on proper form and execution. Courts regularly scrutinize these sworn statements to ensure they meet basic legal requirements, and even minor defects can render them inadmissible. Understanding the minimum standards for a valid affidavit can save attorneys and litigants from costly procedural errors that might derail their cases.

The New York Appellate Division, Second Department, clarified these requirements in a decision that provides helpful guidance for practitioners. This ruling demonstrates how courts evaluate affidavit form and what elements are absolutely necessary for acceptance. For attorneys handling summary judgment motions or other proceedings requiring sworn testimony, these standards are particularly important to understand.

Jason Tenenbaum’s Analysis:

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

The Legal Framework: What Makes a Statement “Sworn”

An affidavit is a written statement sworn to before an officer authorized to administer oaths — almost always a notary public. Two formal components do the legal work. The recital (“John Doe, being duly sworn, deposes and says”) records that an oath was actually administered. The jurat (“Sworn to before me this ___ day of ___,” followed by the notary’s signature and stamp) is the officer’s certification that the swearing happened in their presence.

Strip away either element and the document’s status as sworn testimony comes into question. A signed, notarized statement that never says the affiant was sworn may be treated as no affidavit at all — a defect that matters enormously when the document is the only evidence supporting or opposing a CPLR 3212 motion, where proof must be in admissible form.

Furtow sits at the forgiving end of the spectrum: where the recital and jurat are both present and the notary signed and stamped the document, the form is adequate. The decision does not demand magic words beyond the basics, and it collects a line of authority excusing minor irregularities. The minimum is genuinely minimal — but it is also genuinely mandatory.

Out-of-State Affidavits and the CPLR 2309 Overlay

Form questions multiply when the affidavit is executed outside New York. CPLR 2309(c) requires an out-of-state oath to be accompanied by a certificate of conformity establishing that it was taken in the manner prescribed by the other jurisdiction’s law. That requirement has generated its own substantial body of case law on attestation rules and on whether a missing certificate is fatal or curable — with courts frequently allowing correction nunc pro tunc.

In no-fault practice, where mailing affidavits, no-show affidavits, and peer review affirmations decide most summary judgment motions, these form issues recur constantly. A carrier’s entire defense can rest on an out-of-state claim representative’s affidavit, making the recital, jurat, and conformity certificate worth thirty seconds of review before filing.

The 2024 Game-Changer: Affirmations for Everyone

The legislature substantially defused this entire area effective January 1, 2024, when it amended CPLR 2106 to permit any person — not just attorneys, physicians, and a few other professionals — to submit an affirmation under penalty of perjury in lieu of a notarized affidavit. A compliant affirmation needs no notary, no jurat, and no certificate of conformity.

For new filings, the amendment eliminates most notarization traps. But the traditional rules still govern affidavits actually submitted as affidavits, older documents in the record, and instruments where other statutes independently require acknowledgment or notarization. Practitioners should treat Furtow’s minimum-form checklist as live law whenever a notarized affidavit is the chosen vehicle.

Practice Pointers

• Check the recital and the jurat on every affidavit before it goes out the door — “duly sworn” at the top, “sworn to before me” with a signed, stamped notary block at the bottom.
• For out-of-state affiants, attach a CPLR 2309(c) certificate of conformity, or better yet, use a CPLR 2106 affirmation and avoid the issue entirely.
• If an opponent attacks form, remember that courts may permit a clarifying or corrected affidavit — defects of form are often curable, but never count on it.
• When opposing a motion, scrutinize the movant’s affidavits first; a form defect can defeat the motion without ever reaching the merits.

Frequently Asked Questions

What is the minimum a New York affidavit must contain?

Under Furtow v Jenstro Enterprises, the affidavit must recite that the affiant was “duly sworn” and contain a jurat stating it was “sworn to before” a notary public who signed and stamped the document. With those elements present, the form is adequate.

What is a jurat?

The jurat is the notary’s certification at the end of an affidavit — typically “Sworn to before me this ___ day of ___” with the notary’s signature and stamp — confirming the oath was administered in the notary’s presence. It is distinct from an acknowledgment, which merely verifies identity and signature.

Do I still need a notarized affidavit in New York after 2024?

Often not. As of January 1, 2024, amended CPLR 2106 allows any person to submit an affirmation under penalty of perjury in place of an affidavit in civil litigation. But where a notarized affidavit is used, it must still meet the traditional form requirements.

Related Resources

• IME no-show: it was not mailed — the firm’s cluster hub on mailing and proof-of-service affidavits
• The firm’s Legal Encyclopedia
• No-Fault Defense practice
• An affidavit really is not an affidavit
• CPLR 2309 Requirements, Understanding Affidavit Attestation Rules from the Appellate Division
• CPLR 2309 Compliance, Navigating Notarization Requirements in New York Litigation