Key Takeaway
New York court ruling clarifies that while CPLR 2309 certificate defects aren't fatal, improper notarization requiring personal appearance still invalidates affidavits.
Understanding Defective Notarization in New York Legal Practice
Proper notarization of legal documents is a fundamental requirement in New York litigation, yet the standards and consequences for defective notarization continue to evolve through case law. The Appellate Term’s decision in Clarke v Scottsdale Insurance Co. provides important clarification on two distinct aspects of affidavit defects: CPLR 2309 compliance issues versus fundamental notarization requirements.
This ruling demonstrates how courts differentiate between technical procedural defects that can be overlooked and substantive notarization failures that render documents inadmissible. Understanding these distinctions is crucial for practitioners who regularly submit affidavits in summary judgment motions and other procedural contexts where proper documentation can make or break a case.
The decision also highlights the importance of ensuring that notaries follow proper identification and personal appearance protocols, as these requirements remain non-negotiable despite relaxed attitudes toward certain technical defects.
Jason Tenenbaum’s Analysis:
Clarke v Scottsdale Ins. Co., 2014 NY Slip Op 51586(U)(App. Term 2d Dept. 2014)
(1) 2309 defect does not matter anymore. “While plaintiff timely objected to the form of defendant’s affidavit, in that it did not comply with the requirements of CPLR 2309 (c), the absence of a certificate of conformity is not a fatal defect”
(2)“Nevertheless, we find that the affidavit of defendant’s claims analyst was not in proper admissible form for a different reason, to wit, that the notary public never stated therein that the claims analyst had personally appeared before her and was personally known to her or had satisfactorily established her identity (see Galetta v Galetta, 21 NY3d 186 ; see also Fryer v Rockefeller, 63 NY 268 ; Gross v Rowley, 147 App Div 529 ; cf. Collins v AA Truck Renting Corp., 209 AD2d 363 ). “
Key Takeaway
This decision establishes a clear hierarchy in affidavit defects: while CPLR 2309(c) certificate of conformity issues are no longer fatal, fundamental notarization requirements remain strictly enforced. Notaries must still properly document personal appearance and identity verification. When dealing with defective affidavits, practitioners may have opportunities to submit corrective documentation, but only if the underlying notarization meets basic legal standards.
Legal Update (February 2026): Since this 2014 post, New York’s notarization requirements have undergone significant changes, particularly following the COVID-19 pandemic which introduced remote notarization provisions and modified identification protocols. Additionally, CPLR 2309 compliance standards and court attitudes toward technical notarization defects may have evolved through subsequent appellate decisions and potential statutory amendments. Practitioners should verify current notarization requirements and recent case law interpretations before relying on the standards discussed in this post.
