Key Takeaway
Learn about CPLR § 2309(c) requirements for out-of-state affidavits in New York courts. Andromeda case analysis & best practices for Long Island attorneys.
⚠️ IMPORTANT UPDATE — January 1, 2024: The certificate of conformity requirement discussed in this article has been effectively rendered obsolete by the landmark amendment to CPLR § 2106, signed by Governor Hochul in October 2023. As of January 1, 2024, any person — anywhere — can submit an affirmation in lieu of a notarized affidavit in New York litigation, eliminating the need for certificates of conformity for out-of-state documents.
👉 Read our full analysis: How the CPLR § 2106 Amendment Changes Everything for New York Litigation →
Understanding CPLR § 2309(c): Out-of-State Affidavits and Certificate Requirements in New York Courts
In the complex landscape of New York civil procedure, proper documentation and authentication requirements can make or break a legal case. When dealing with out-of-state affidavits in New York courts, attorneys must navigate specific requirements under the Civil Practice Law and Rules (CPLR) to ensure their evidence is admissible. A recent appellate decision highlights the critical importance of strict compliance with these procedural requirements.
The Andromeda Medical Care Decision: A Cautionary Tale
Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 2009 NY Slip Op 51629(U)(App. Term 2d Dept. 2009)
“The affidavits proffered by defendant in support of its motion for summary judgment were executed out of state. Although the affidavits were accompanied by documents that purported to be certificates of conformity, the certificates did not comply with Real Property Law § 299-a and, thus, the affidavits did not comply with CPLR 2309 (c)”
Another case involving CPLR § 2309(c). Read my previous comments on this topic.
The Legal Framework: CPLR § 2309(c) and Real Property Law § 299-a
CPLR § 2309(c) establishes specific requirements for affidavits executed outside New York State. This provision is designed to ensure the authenticity and reliability of sworn statements made beyond New York’s jurisdiction, where New York courts cannot directly oversee the oath-taking process.
When an affidavit is executed outside New York, it must be accompanied by proper authentication that demonstrates the authority of the official administering the oath. This typically involves a certificate of conformity that meets the standards set forth in Real Property Law § 299-a.
The Certificate of Conformity Requirement
Real Property Law § 299-a outlines the specific format and content requirements for certificates of conformity. These certificates must:
- Verify that the person taking the oath has proper authority under local law
- Include appropriate seals or stamps as required by the jurisdiction
- Follow the prescribed format without substantial deviation
- Be executed by an official with authority to provide such certification
New York and Long Island Practice Considerations
For practitioners in Nassau County, Suffolk County, and throughout the New York metropolitan area, the Andromeda decision serves as an important reminder about the precision required in civil procedure. New York courts, including those in Nassau and Suffolk Counties, strictly enforce these authentication requirements regardless of whether the case involves personal injury, commercial litigation, or other civil matters.
The appellate courts in the Second Department, which covers Long Island and Brooklyn, have consistently held that substantial compliance is not sufficient when it comes to CPLR § 2309(c). The procedural requirements must be met exactly as prescribed by statute.
Impact on Summary Judgment Motions
The consequences of failing to properly authenticate out-of-state affidavits can be severe. In Andromeda, the defendant’s motion for summary judgment was undermined because their supporting affidavits were deemed inadmissible due to improper authentication. This highlights how technical procedural defects can derail otherwise meritorious legal arguments.
When preparing summary judgment motions that rely on out-of-state affidavits, Nassau and Suffolk County attorneys must ensure that every certification requirement is met precisely. A defective certificate of conformity can render even the most compelling affidavit evidence worthless.
Best Practices for Long Island Attorneys
To avoid the pitfalls illustrated in Andromeda, practitioners should:
- Verify jurisdiction requirements: Research the specific authentication requirements in the state where the affidavit will be executed
- Use proper forms: Ensure that certificate of conformity forms comply exactly with Real Property Law § 299-a
- Double-check authority: Confirm that the official providing the certificate has proper authority under local law
- Review before filing: Carefully examine all certifications before submitting affidavits to New York courts
Common Mistakes to Avoid
The most frequent errors in out-of-state affidavit authentication include:
- Using outdated or incorrect certificate forms
- Failing to obtain proper seals or notarization
- Accepting certificates from officials without proper authority
- Assuming that “substantial compliance” will be sufficient
Frequently Asked Questions About CPLR § 2309(c)
Q: What happens if my out-of-state affidavit lacks proper certification?
A: The affidavit may be deemed inadmissible, potentially undermining your client’s case. As shown in Andromeda, even strong legal arguments can fail if procedural requirements aren’t met exactly.
Q: Can I cure a defective certificate after filing?
A: While courts may sometimes allow amendment of pleadings, it’s far better to ensure proper authentication from the outset. Delays in obtaining proper certification can affect your case timeline and strategy.
Q: Do these requirements apply to all out-of-state affidavits?
A: Yes, CPLR § 2309(c) applies to any affidavit executed outside New York State, regardless of the type of legal proceeding or the proximity of the other jurisdiction.
Q: Are there any exceptions to these authentication requirements?
A: The statute provides limited exceptions, but they are narrowly construed. When in doubt, it’s safest to assume full compliance is required.
Q: How can I ensure my certificates comply with Real Property Law § 299-a?
A: Work with qualified local counsel in the jurisdiction where the affidavit will be executed, and always verify that the certificate format matches New York’s requirements exactly.
Protecting Your Client’s Interests
The Andromeda decision underscores the importance of meticulous attention to procedural details in New York litigation. For clients throughout Nassau County, Suffolk County, and the broader New York area, proper case preparation can mean the difference between success and failure in court.
Whether you’re dealing with a personal injury case, commercial dispute, or other civil matter, ensuring that all procedural requirements are met from the outset protects your client’s interests and avoids unnecessary delays or setbacks.
If you need experienced legal representation in Nassau County, Suffolk County, or anywhere in New York, call 516-750-0595 for a consultation. Our firm understands the intricacies of New York civil procedure and will ensure your case is properly prepared and presented.
Related Articles
- How the CPLR § 2106 Amendment Changes Everything for New York Litigation
- Understanding CPLR § 2106 Requirements in New York Courts
- Continental Medical Case Analysis: Medical Necessity Evidence Standards
- Written Opposition Strategies for Procedural Challenges
- New York No-Fault Insurance Law
Legal Update (February 2026): Since this post’s original publication in 2009, CPLR § 2309(c) and related authentication requirements for out-of-state affidavits have undergone significant revision, particularly with the major amendment to CPLR § 2106 that took effect January 1, 2024, which eliminated many traditional notarization and certificate of conformity requirements. Practitioners should verify current procedural requirements and authentication standards, as the landscape for out-of-state documentary evidence has substantially evolved since 2009.
