At first, the Appellate Term said it was a fatal defect. Then, they said it was a waivable defect. After that it was held to be a defect that literally could cured nunc pro tunc through filing a new affidavit with the Civil Court clerk. Now, it is deemed irrelevant. Such is the sordid history of this provision of the CPLR. What is noteworthy is that Second Department in 2014 for the first time I can remember held this to defect to be fatal.
Flatlands Med., P.C. v AAA Ins., 2014 NY Slip Op 24048 (App.. Term 2d Dept. 2014)
“At the outset, we note that, despite defendant’s failure to submit a proper certificate of conformity together with the out-of-state affidavit of its corporate officer, as required by CPLR 2309 (c), this omission was not a fatal error (see CPLR 2001;Gonzalez v Perkan Concrete Corp., 110 AD3d 955 ; Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 110 AD3d 680 ; Fredette v Town of Southampton, 95 AD3d 940 ; Bay Med. P.C. v GEICO Ins. Co., ___ Misc 3d ___, 2013 NY Slip Op 52084[U] [App Term, 2d, 11th & 13th Jud Dists 2013]) and, therefore, the affidavit has been reviewed on this appeal. In view of the foregoing, we find that the Civil Court properly granted defendant leave to renew and reargue its motion for summary judgment.
See: Freedom Mtge. Corp. v Toro, 113 AD3d 815 (2d Dept. 2014)
“It appears from this record that the plaintiff was the holder of the mortgage and note. In any event, by failing to appear in the action, the debtor waived the defense of lack of standing (see HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 817 ). However, the affidavit attesting to the debtor’s default in repaying the mortgage loan did not comply with CPLR 2309 (c). Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in denying relief to the movant without prejudice.”
Justice Solomon (who wrote the underlying Supreme court deicison) was in the App. Term panel)
As to the merits, the court held as follows:
“defendant demonstrated, prima facie, through documentary evidence, that it was not authorized to conduct an insurance business in New York and, as a result, jurisdiction could not be obtained over it pursuant to Insurance Law § 1212. Furthermore, defendant established, prima facie, through the affidavit of its corporate officer, that neither it nor its reciprocal insurers, affiliates, or subsidiaries provide, write, or sell insurance in the State of New York or to its residents. They do not provide goods or services within New York nor do they transact business in New York and they do not have any offices or agents in this state. Thus, defendant did not perform any of the acts specified in Insurance Law § 1213 (b) (1) in New York and, as a result, jurisdiction could not be obtained over it pursuant to Insurance Law § 1213 (see Farm Family Mut. Ins. Co. v Nass, 121 AD2d 498 ).”
On this type of motion, this is what the affidavit has to state in order to shift the burden back to the medical provider/injured party.