Key Takeaway
Court rules that missing authentication certificates for out-of-state notarized affidavits under CPLR 2309(c) is not a fatal defect when waived by opposing party.
Understanding CPLR 2309(c) Authentication Requirements
New York’s Civil Practice Law and Rules (CPLR) Section 2309(c) requires specific authentication when affidavits are notarized outside of New York State. Typically, such documents must include certificates that authenticate the authority of the out-of-state notary who administered the oath. This requirement ensures the validity and authenticity of sworn statements used in New York litigation.
However, procedural defects in legal documents don’t always result in automatic dismissal. Courts have discretionary power under CPLR 2001 to overlook technical deficiencies, particularly when the opposing party fails to object in a timely manner. This principle prevents parties from strategically waiting to raise procedural objections until it becomes advantageous to do so.
The interplay between strict procedural requirements and judicial discretion creates an important balance in civil litigation. While courts maintain standards for document authentication, they also recognize that minor procedural errors shouldn’t derail otherwise meritorious cases.
Jason Tenenbaum’s Analysis:
Gonzalez v Perkan Concrete Corp., 2013 NY Slip Op 06835 (2d Dept. 2013)
“Finally, although the affidavits of the defendants’ expert, which were notarized outside of New York, were not accompanied by certificates authenticating the authority of the notaries who administered the oaths (see CPLR 2309), this omission was not a fatal defect (see CPLR 2001; Matter of Recovery of Judgment, LLC v Warren, 91 AD3d 656, 657; Betz v Daniel Conti, Inc., 69 AD3d 545, 545; Smith v Allstate Ins. Co., 38 AD3d 522, 523). [*4]
Key Takeaway
The Gonzalez decision demonstrates that procedural defects under CPLR 2309(c) can be waived when not timely raised by the opposing party. Courts will apply CPLR 2001’s discretionary authority to overlook technical authentication omissions, preventing parties from gaining unfair strategic advantages through delayed procedural objections. This ruling reinforces the principle that substantive justice should prevail over minor procedural technicalities.
Legal Update (February 2026): Since this 2013 post, CPLR procedural requirements and judicial interpretations regarding authentication defects and waiver under sections 2309(c) and 2001 may have evolved through subsequent court decisions and potential rule amendments. Practitioners should verify current authentication requirements for out-of-state notarized affidavits and recent appellate guidance on waiver of procedural defects before relying on the specific precedents discussed.
