Key Takeaway
NY appellate court rules certificate of acknowledgment defects in prenuptial agreements may be cured nunc pro tunc with proper evidence of contemporaneous execution.
This article is part of our ongoing 2106 and 2309 coverage, with 194 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.
Galetta v Galetta, 2012 NY Slip Op 04865 (4th Dept. 2012)
We here about the now dead(?) certificate of conformity. How about the certificate of acknowledgment that must be annexed to a prenuptual agreement? In a procedurally interesting 3-2 decision, the Fourth Department says “maybe”.
Factually, Plaintiff moved for summary judgment in a matrimonial action seeking to declare that the prenuptual agreement was invalid. The motion was based upon the failure of the acknowledgment stating that the deponent: “knows or has satisfactory evidence, that the person making it is the person described in and who executed such instrument.”
The Court held that this could be cured based upon the facts in the record. According to the Court,”Here, defendant is not attempting to cure the complete absence of a contemporaneous acknowledgment. Rather, he is attempting to submit evidence that there was, in fact, a proper and contemporaneous acknowledgment at the time the prenuptial agreement was executed. In our view, the affidavit from the notary who took [*3]defendant’s acknowledgment is sufficient to raise a triable issue of fact whether “the parties … contemporaneously demonstrated the deliberate nature of their agreement” (Schoeman, Marsh & Updike v Dobi, 264 AD2d 572, 573, lv dismissed 94 NY2d 944, 97 NY2d 721, lv denied 100 NY2d 508; cf. Leighton v Leighton, 46 AD3d 264, 265, appeal dismissed 10 NY3d 739). The statements of the notary, i.e., that it was his usual and customary practice to ask and confirm that the person signing the document was the same person named in the document and that he or she was signing said document, “constitute competent and admissible evidence concerning routine professional practice sufficient to raise a triable issue of fact” (Gier v CGF Health Sys., 307 AD2d 729, 730; see generally Halloran v Virginia Chems., 41 NY2d 386, 389). We thus conclude that the court properly denied that part of plaintiff’s motion for summary judgment seeking a determination as a matter of law that the parties’ prenuptial agreement is invalid.”
I mention this because what do the rules of curing deficiencies in this type of certificate and the infamous certificate of conformity have in common?
Well, not a whole heck of a lot.
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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.
194 published articles in 2106 and 2309
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Frequently Asked Questions
What is the difference between a CPLR 2106 affirmation and a CPLR 2309 affidavit?
A CPLR 2106 affirmation can be signed by an attorney, physician, dentist, or podiatrist without notarization — the affirmant simply affirms under penalty of perjury. A CPLR 2309 affidavit requires a notary public or authorized officer to administer an oath. Using the wrong form can result in a court rejecting the submission.
When must I use a notarized affidavit versus an affirmation in New York?
Licensed attorneys, physicians, dentists, and podiatrists may use unsworn affirmations under CPLR 2106. All other individuals must use notarized affidavits under CPLR 2309. In no-fault litigation, this distinction frequently arises when submitting medical evidence or opposing summary judgment motions.
Can a court reject evidence submitted in the wrong format?
Yes. Courts routinely reject affidavits and affirmations that do not comply with CPLR 2106 or 2309. An improperly sworn document may be treated as a nullity, which can be fatal to a motion for summary judgment or opposition. Proper formatting is a critical procedural requirement in New York practice.
What are common procedural defenses in New York no-fault litigation?
Common procedural defenses include untimely denial of claims (insurers must issue denials within 30 days under 11 NYCRR §65-3.8(c)), failure to properly schedule EUOs or IMEs, defective service of process, and failure to comply with verification request requirements. Procedural compliance is critical because courts strictly enforce these requirements, and a single procedural misstep by the insurer can result in the denial being overturned.
What is the CPLR and how does it affect my case?
The New York Civil Practice Law and Rules (CPLR) is the primary procedural statute governing civil litigation in New York state courts. It covers everything from service of process (CPLR 308) and motion practice (CPLR 2214) to discovery (CPLR 3101-3140), statute of limitations (CPLR 213-214), and judgments. Understanding and complying with CPLR requirements is essential for successful litigation.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
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.