The First Department’s newest inconsistent position on 2309

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 [2007]).”

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.