Key Takeaway
Fredette: missing conformity certificates, separate expert-proof defects, and why the 2012 opinion did not abolish CPLR 2309(c).
This article is part of our ongoing 2106 and 2309 coverage, with 195 published articles analyzing 2106 and 2309 issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Last reviewed: September 2026.
Historical note: This ruling concerns the affidavit submitted under the earlier procedure; current CPLR 2106 permits a subscribed perjury affirmation for covered statements without eliminating every oath or acknowledgment requirement.
Fredette v Town of Southampton, 95 AD3d 940 (2d Dept 2012) distinguished a missing conformity certificate from other defects in affidavit and expert proof. The court should have considered two notarized affidavits despite the missing certificates.
Which submissions the court accepted
The affidavits of Ken Glaser and Kris Kubly were notarized but lacked CPLR 2309(c) conformity certificates. The Second Department held that excluding them on that ground was improper. It cited its own earlier decision and decisions from the First and Third Departments. The passage identifies three Departments, not all four.
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Other submissions had different problems. Tsurumi’s statement was not notarized and was otherwise inadmissible under the rules then applied. Frackleton’s affidavit did not establish his qualification to give the expert opinion. Accepting Glaser and Kubly’s affidavits did not make every document in the record competent evidence.
The certificate requirement was not abolished
CPLR 2309(c) remains in effect. Midfirst Bank v Agho later explained the difference between conformity and authentication and discussed correction of missing certificates. Fredette supplies an example of improper exclusion, not permission to ignore execution requirements. Current CPLR 2106 provides a separate alternative for covered statements; use its current form and exceptions.
Frequently Asked Questions
What is a certificate of conformity under CPLR 2309(c)?
It addresses whether an out-of-state oath was administered in conformity with the applicable law. Midfirst distinguishes that issue from authentication of the officer’s authority. The document and officer determine the applicable requirements.
Is a missing certificate of conformity a fatal defect in New York litigation?
Not automatically. Fredette held that the notarized Glaser and Kubly affidavits should not have been excluded for that omission. It did not excuse the separate evidentiary problems in every other submission.
Can an out-of-state affidavit be used in New York court without a certificate of conformity?
It can be considered despite that omission, as Fredette illustrates. CPLR 2309(c) remains in effect; correction, the nature of the defect and any prejudice still need attention.
Which New York appellate courts have ruled on the certificate of conformity issue?
Fredette identifies the Second Department’s own precedent and decisions from the First and Third Departments. Its cited discussion does not support this page’s former claim that all four Departments had joined the rule.
Connect to the Encyclopedia
Start with the CPLR 2106 affirmations and affidavits hub for the current procedure and its historical cases.
- Clarke: conformity and notarial attestation are separate defects
- American Casualty: a curable certificate omission on a dismissal motion
- Quality Psychological: former signer restrictions and two failed motions
- New Millennium: oath defects beyond mere form
For review of a particular document or motion record, contact the firm. This note is general information, not an assessment of a pending case.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
CPLR 2106 and 2309: Affirmation & Oath Requirements
CPLR 2106 governs who may submit an affirmation in lieu of an affidavit in New York courts, while CPLR 2309 addresses the requirements for oaths, affidavits, and the certification of out-of-state documents. These seemingly technical provisions have significant practical impact — an improperly executed affirmation or affidavit can render an entire summary judgment motion defective. These articles analyze the formal requirements, common defects, and court decisions that practitioners must navigate when preparing sworn statements.
195 published articles in 2106 and 2309
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Feb 10, 2012Frequently Asked Questions
Common Questions About This Topic
4 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
What is a certificate of conformity under CPLR 2309(c)?
It addresses whether an out-of-state oath was administered in conformity with the applicable law. Midfirst distinguishes that issue from authentication of the officer's authority. The document and officer determine the applicable requirements.
Is a missing certificate of conformity a fatal defect in New York litigation?
Not automatically. Fredette held that the notarized Glaser and Kubly affidavits should not have been excluded for that omission. It did not excuse the separate evidentiary problems in every other submission.
Can an out-of-state affidavit be used in New York court without a certificate of conformity?
It can be considered despite that omission, as Fredette illustrates. CPLR 2309(c) remains in effect; correction, the nature of the defect and any prejudice still need attention.
Which New York appellate courts have ruled on the certificate of conformity issue?
Fredette identifies the Second Department's own precedent and decisions from the First and Third Departments. Its cited discussion does not support this page's former claim that all four Departments had joined the rule.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a 2106 and 2309 matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
