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2309 again – nothing different todayOctober 10, 2017

Donsimoni v Fall, 2017 NY Slip Op 07092 (1st Dept. 2017)

“The fact that plaintiff’s lone affidavit of merit in opposition to defendant’s summary judgment was acknowledged by a vice-consul in the U.S. Embassy in Paris, France, yet was submitted without a requisite certificate of conformity (see CPLR 2309[c]; Real Property Law § 301, et seq.), constituted an irregularity that could be corrected nunc pro tunc, if necessary (see DaSilva v KS Realty, L.P., 138 AD3d 619 [1st Dept 2016]; Gyamfi v Citywide Mobile Response Corp., 146 AD3d 612 [1st Dept 2017])….”

It is amazing that the Court actually countenanced the certificate of conformity argument in the first place.

4 Responses

  1. Nathan says:

    Your summary and the court’s decision doesn’t really capture the legal issues in play. The Supreme Court initially granted the defendant’s motion for summary judgment because the affidavit was both modified by hand and lacked a certificate of conformity. Plaintiff moved to renew/reargue, but did not produce a new affidavit or correct the omitted certificate of conformity. They argued (wrongly, as the Appellate Division order makes clear) that no certificate of conformity is needed when the affidavit was acknowledged by a vice consul. they confused a certificate of conformity with a certificate of authentication, and relied on a lower Supreme Court case that did the same for that proposition.

    The real issue here is the remedy for a missing certificate of conformity. Defendant concurred it was an irregularity. But like the decision makes clear, in the First Department it is an “irregularity that could be corrected nunc pro tunc”. (IN THE SECOND DEPARTMENT, IT IS AN IRREGULARITY THAT COULD BE DISREGARDED without correction.) Plaintiff moved to reargue, but never corrected the error, and so the lower court should not have considered the affidavit at all. If the Court followed the rule actually being articulated here, Defendant had a chance to prevail.

    Overall, it was an interesting appeal to brief and had merit in light of First Department’s rule that it is a “correctable” irregularity that went uncorrected as opposed to the Second Department rule that it can simply be disregarded.

    • jtlawadmin says:

      I cannot imagine in 2017 jurisprudence how a missing certificate of conformity or certificate of authentication would invalidate an affidavit, at least in a case from the Appellate Division. The fact is the Legislature should amend 2106 to allow anybody to affirm under penalties of perjury. 18 USC 1746 allows this as do the laws of most states. The necessity of an affidavit is an anachronism of a different era.

  2. Nathan says:

    It was only 2010 (http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03481.htm) and 2007 that the Court enforced this requirement (http://www.courts.state.ny.us/reporter/3dseries/2007/2007_07348.htm). I But I agree, 2106 needs to be updated to remove the certificate of conformity requirement at least.

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