Key Takeaway
Court rules on certificate of conformity requirements for affidavits in default judgment motions, finding waiver of CPLR 2309(a) defects is permissible.
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.
Todd v Green, 2014 NY Slip Op 08004 (2d Dept. 2014)
Law Office of Jason Tenenbaum, P.C, Garden City, N.Y., for appellant. (shameless self promotion)
“The Supreme Court determined that the plaintiff’s affidavit of merit, notarized in Georgia, lacked a proper certificate of conformity as required by CPLR 2309(a), and denied the motion, with leave to renew upon the submission of a proper affidavit. The plaintiff appeals.”
” A party’s right to recover upon a defendant’s failure to appear or answer is governed by CPLR 3215′” (U.S. Bank, N.A. v Razon, 115 AD3d 739, 740, quoting Beaton v Transit Facility Corp., 14 AD3d 637, 637). Thus, a plaintiff moving for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant’s failure to appear or answer (see CPLR 3215; U.S. Bank N.A. v Poku, 118 AD3d 980; U.S. Bank N.A. v Razon, 115 AD3d at 740; Dela Cruz v Keter Residence, LLC, 115 AD3d 700). Here, in support of his motion to enter a default judgment, the plaintiff met all of these requirements (see U.S. Bank N.A. v Poku, 118 AD3d 980). Although the Supreme Court found that the plaintiff’s affidavit lacked a proper certificate of conformity, it should have considered the affidavit since the absence of a certificate of conformity is not a fatal defect (see Midfirst Bank v Agho, 121 AD3d 349; Gonzalez v Perkan Concrete Corp., 110 AD3d 955, 960; Fredette v Town of Southampton, 95 AD3d 940, 942). Further, even if the subject certificate of conformity was inadequate, the defendant failed to answer or appear in opposition to the motion, and it was inappropriate for the Supreme Court to, sua sponte, raise the issue on the defendant’s behalf (see Midfirst Bank v Agho, 121 AD3d 349).
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Legal Update (February 2026): Since this 2014 post, CPLR 2309’s certificate of conformity requirements for out-of-state notarizations may have been subject to regulatory amendments or clarifications through subsequent court decisions and rule changes. Additionally, default judgment procedures under CPLR 3215 have been refined through ongoing appellate decisions. Practitioners should verify current provisions regarding out-of-state notarization requirements and default judgment motion standards.
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.
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.
