The First Department's newest inconsistent position on 2309

Last reviewed: September 2026.

Historical note: Green’s 2010 exclusion must be read alongside Donsimoni’s later cure ruling and the current affirmation guide, rather than as an automatic rejection rule for every missing certificate.

Green v Fairway Operating Corp., 72 AD3d 613 (1st Dept 2010) arose after a supermarket slip-and-fall plaintiff defaulted on a summary-judgment motion. She sought to vacate the resulting order. Her nonparty witness’s affidavit was essential to showing a meritorious claim, but it had been sworn in the Dominican Republic without the conformity certificate the court required. The denial of vacatur was affirmed.

Read the 2010 ruling with the later cases

Green excluded the affidavit on that record. Seven years later, Donsimoni v Fall treated a missing certificate as curable and affirmed denial of an accident defendant’s summary-judgment motion. These different procedural records matter. Neither decision justifies treating every omission as an automatic win or loss.

CPLR 2309(c) remains relevant when proof uses an oath administered outside New York. Current CPLR 2106 provides a separate signed-affirmation option for covered statements, subject to its exceptions. Before relying on the historical criticism below, identify which procedure the document actually uses and what relief the court is being asked to grant.

Jason’s original comment

This is Jason’s original 2010 reaction, including its spelling. Read it with the later Donsimoni ruling above; it is not a statement that current law has no ascertainable standard.

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.

Connect to the Encyclopedia

• CPLR 2106: current affirmation rules and historical affidavit cases
• Donsimoni: later First Department treatment of a missing certificate
• Furtow: why the affidavit’s form was accepted
• Five Boro: a distinct oath-attestation defect
• Watabe: a different objection to affidavit form

For review of a particular motion, keep the signed reports, supporting records, objections and court orders together and contact the firm. This historical note is general information, not an assessment of an individual case.