Key Takeaway
Second Department rules that CPLR 2309(c) notarization defects are not fatal when corrective certification can be provided nunc pro tunc under CPLR 2001.
CPLR 2309(c) Defects Can Be Cured After the Fact, Court Rules
In New York civil practice, proper document authentication and notarization requirements under CPLR 2309(c) have long been a source of procedural disputes. This statute requires that documents notarized outside New York State must be accompanied by a certificate of conformity to ensure their validity in New York courts. Failure to comply with these requirements has historically led to significant litigation delays and dismissed cases.
However, a recent Second Department decision provides important guidance on how courts should handle procedural defects in document submission. The ruling demonstrates the court’s willingness to apply curative measures rather than impose harsh penalties for technical violations, particularly when the underlying documentation requirements can still be satisfied.
This decision has significant implications for practitioners who frequently deal with out-of-state notarized documents in foreclosure actions, commercial litigation, and other civil matters where proper procedural compliance is essential but technical defects may occur.
Jason Tenenbaum’s Analysis:
U.S. Bank Natl. Assn. v Dellarmo, 2012 NY Slip Op 02481 (2d Dept. 2012)
“The plaintiff’s failure to comply with CPLR 2309(c) in submitting various documents, including, among others, the corrective assignment, which were notarized outside the state but not accompanied with a certificate in conformity with CPLR 2309(c), was not a fatal defect, as such certification may be provided nunc pro tunc”see CPLR 2001….”
Key Takeaway
The Second Department’s ruling establishes that CPLR 2309(c) defects are curable rather than fatal. Courts can allow parties to provide the required certification “nunc pro tunc” (retroactively) under CPLR 2001, which grants courts broad discretion to cure procedural defects in the interest of justice. This practical approach prevents technical violations from derailing otherwise meritorious cases.
Legal Update (February 2026): Since this 2012 analysis of CPLR 2309(c) authentication requirements, New York courts have continued to develop jurisprudence regarding document notarization defects and curative measures. The procedural landscape for out-of-state notarized documents and certificate of conformity requirements may have evolved through subsequent appellate decisions and potential amendments to court rules. Practitioners should verify current provisions of CPLR 2309(c) and review recent case law to ensure compliance with current authentication standards.
