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 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.
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 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.”
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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.
195 published articles in 2106 and 2309
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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.
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