Key Takeaway
New York's First Department demonstrates inconsistent application of CPLR 2309 certificate requirements for foreign affidavits, creating unpredictable outcomes for practitioners.
New York’s Civil Practice Law and Rules (CPLR) requires specific formalities for affidavits executed outside the United States. Under CPLR 2309(c), foreign affidavits must include a certificate of conformity to be properly considered by the court. However, as demonstrated in a recent First Department decision, the enforcement of this requirement remains frustratingly inconsistent across New York’s appellate courts.
The unpredictable application of these procedural rules creates significant challenges for practitioners handling cases with international elements. Similar to other procedural timing requirements, courts sometimes apply strict enforcement while other times show flexibility. This inconsistency extends to various aspects of civil procedure, including situations where courts may allow correction of procedural defects after initial filing.
The case of Green v Fairway Operating Corp. illustrates this ongoing judicial inconsistency regarding foreign affidavit requirements and their enforcement.
Jason Tenenbaum’s Analysis:
Green v Fairway Operating Corp., 2010 NY Slip Op 03481 (1st Dept. 2010)
“The affidavit of plaintiff’s witness, purportedly sworn to in the Dominican Republic, lacks the certificate of conformity (Real Property Law § 301-a) required by CPLR 2309(c), and therefore is not properly before the Court (see Matter of Elizabeth R.E. v Doundley A.E., 44 AD3d 332 ).”
There is no set rule regarding the consequence for failing to obtain a certificate of conformity. It seems to be up to the panel at the appropriate appellate court to determine, ad hoc, whether the affidavit will be accepted. Sometimes the defect is excusable, sometimes it is not. Sometimes the defect may be cured later on, sometimes it may not. I cannot give an accurate description of the law on this topic. All I can say is that make sure you obtain a certficiate of conformity for out of state affidavits. There is no reason to be stuck playing Russian roulette, in determining whether the affidavit, at the end of the day, will be accepted.
Key Takeaway
The First Department’s handling of CPLR 2309 certificate requirements demonstrates the unpredictable nature of procedural enforcement in New York courts. Given the inconsistent judicial treatment of missing certificates of conformity, practitioners must ensure compliance with all foreign affidavit requirements from the outset rather than risk adverse rulings.
Legal Update (February 2026): Since this 2010 post, CPLR 2309’s foreign affidavit requirements and the First Department’s interpretation may have evolved through subsequent case law and potential rule amendments. Practitioners should verify current procedural standards for foreign affidavits and certificate of conformity requirements, as appellate court positions on enforcement may have shifted or been clarified through intervening decisions.
