CPLR 2309 and the ability to submit new evidence in a replyJanuary 1, 2010

The Courts seem to be all over the place with the certificate of conformity requirement for out of state affidavits found in CPLR 2309.  This statute serves no purpose in 21st century commerce and should be shelved with the common law demurrer and the serve and file system of commencing actions.  Yet, it lives on and another case is dedicated to this antiquated statute.

In Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, 2009 NY Slip Op 09713 (1st Dept. 2009), the Appellate Division held the following:

“Defendant has not preserved its argument that the foreign affidavits were invalid for lack of the certification required by CPLR 2309(c) and Real Property Law § 299-a. In any event, the courts are not rigid about this requirement. As long as the oath is duly given, authentication of the oathgiver’s authority can be secured later, and given nunc pro tunc effect if necessary (see Siegel, Practice Commentary, McKinney’s Cons Laws of NY, CPLR 2309:3). The absence of such a certificate is a mere irregularity, and not a fatal defect (see Smith v Allstate Ins. Co., 38 AD3d 522 [2007]).”

I read this case for the proposition that the failure to secure a 2309 certification should allow a case to be adjudicated on the merits, provided the certification is obtained within a time period following the decision.

Here is how I would see a decretal paragraph on a plaintiff’s motion for summary judgment that is based upon an affidavit that does not contain the 2309 certificate language:

“It is ordered that Plaintiff’s motion for summary judgment is granted and the clerk is directed to enter judgment in the sum of  XXXX, with execution stayed for 30-days from the service of this order with notice of entry, for Plaintiff to provide a certificate of conformity to this  court.  Should Plaintiff fail to provide a certificate of conformity within 30-days from the service of this order with notice of entry, then Plaintiff’s motion for summary judgment is denied.”

The second issue here involves the use of a reply to introduce new evidence or arguments when the opposing party does not get to have the last say on the motion.

“Plaintiff demonstrated it was a holder of the subject notes, and had a capacity to sue thereunder. Defendant failed to demonstrate a genuine defense to the notes. The notes were made payable to a Delaware corporation that later merged with another Delaware corporation, which in turn assigned to plaintiff its rights to the notes. The surviving corporation had the power to make that assignment (see Business Corporation Law § 906[b]; 8 Del Code Ann § 259[a]).

In its reply, plaintiff submitted a supplemental affidavit containing endorsements to the notes, which had inadvertently been omitted on the initial moving papers. The court properly considered this submission because defendant had made an issue of the omission in response to the motion (see Matter of Kennelly v Mobius Realty Holdings LLC, 33 AD3d 380, 382 [2006]; Ryan Mgt. Corp. v Cataffo, 262 AD2d 628, 630 [1999]).”

Dave Gottlieb in CPLR land discusses this case.

2 Responses

  1. I’d be surprised if courts began granting conditional orders on this issue. It’s something that could easily be fixed in a reply.

    • JT says:

      What happens if your 2309 mistake occurred in an opposition, which was picked up in your adversary’s reply? Is the answer a surreply? It could be – courts have allowed this. Surreplies, however, should be avoided at all costs.

      What happens if the 2309 mistake occurred in a Reply, where there is no chance to oppose the form issue?

      The Appellate Division, First Department, opened up the door on these issues. What I liked was about 5 years ago, the Appellate Term, First Department held that 2309 defects are meaningless and the court may not reject the affidavit solely on that ground. I have a deep down wish that this would become the law of the state.

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