Key Takeaway
New York's Second Department clarifies that missing CPLR 2309(c) certificates of conformity for out-of-state affidavits are not fatal defects in litigation.
For decades, New York practitioners have grappled with the technical requirements of CPLR 2309(c), which governs the use of out-of-state affidavits in court proceedings. This provision requires that affidavits executed outside New York be accompanied by a “certificate of conformity” — essentially verification that the document complies with the laws of the state where it was executed. Courts have sometimes excluded otherwise valid affidavits solely because they lacked this technical certification, creating unnecessary barriers to presenting evidence.
The Second Department’s decision in Fredette v Town of Southampton represents a significant clarification on this procedural requirement. Rather than treating the absence of a certificate of conformity as an automatic disqualification, the court recognized that such technical defects should not prevent courts from considering substantively valid evidence. This approach aligns with broader principles favoring resolution of cases on their merits rather than on procedural technicalities.
Jason Tenenbaum’s Analysis:
Fredette v Town of Southampton, 2012 NY Slip Op 03595 (2d Dept. 2012)
“it improvidently exercised its discretion in excluding from consideration the affidavits of Ken Glaser and Kris Kubly on the ground that the affidavits, while notarized, were not accompanied by a certificate of conformity required by CPLR 2309(c). This Court has previously held that the absence of a certificate of conformity for an out-of-state affidavit is not a fatal defect (see Smith v Allstate Ins. Co., 38 AD3d 522, 523), a view shared by the Appellate Division, First and Third Departments as well (see Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, 68 AD3d 672 ; Sparaco v Sparaco, 309 AD2d 1029, 1031 ; Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833 ; see also Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2309:3).”
Key Takeaway
The Fredette decision effectively puts to rest the notion that CPLR 2309(c) certificate of conformity requirements should be strictly enforced. With all four Appellate Departments now in agreement, practitioners can be confident that missing certificates will not automatically doom their out-of-state affidavits, allowing courts to focus on substantive procedural compliance rather than technical formalities.
Legal Update (February 2026): CPLR 2309(c) and its certificate of conformity requirements may have been subject to legislative amendments or judicial interpretations since 2012. Practitioners should verify current provisions regarding out-of-state affidavits and any procedural changes that may affect the Fredette court’s analysis of technical compliance requirements.
