Key Takeaway
Clarke v Scottsdale: a curable conformity omission differed from a defective notarial attestation. The insurer's motion remained denied.
This article is part of our ongoing affidavits coverage, with 196 published articles analyzing affidavits 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.
Last reviewed: September 2026.
Historical note: This ruling concerns the affidavit submitted under the earlier procedure; current CPLR 2106 permits a subscribed perjury affirmation for covered statements without eliminating every oath or acknowledgment requirement.
A missing conformity certificate and a defective notarial attestation are different problems. Clarke v Scottsdale Insurance, 45 Misc 3d 131(A) (2014) rejected the certificate objection but still found the insurer’s claims-analyst affidavit inadmissible.
The defect that controlled Clarke
The plaintiff timely objected to the missing CPLR 2309(c) certificate. The Appellate Term treated that omission as curable under CPLR 2001, rather than fatal by itself.
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The affidavit failed for another reason: the notary had not stated that the analyst appeared before her and was personally known to her or satisfactorily identified. The court affirmed denial of the insurer’s summary judgment motion. That is not a ruling on every aspect of the underlying insurance dispute.
Section 2309 remains in force. An objection about a missing certificate does not answer whether the submitted affidavit records an administered oath. Nor does this 2014 opinion provide a complete rule for modern remote notarization. For a covered statement today, CPLR 2106 offers a separate affirmation procedure; the form must fit the submission.
Jason’s original comment
Jason’s original numbered comment follows. Its opening shorthand does not mean CPLR 2309(c) ceased to matter; the separate attestation defect controlled this motion.
(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 ). “
Connect to the Encyclopedia
Start with the CPLR 2106 affirmations and affidavits hub for the current procedure and its historical cases.
- New Way: apparent notarization before signing
- New Millennium: oath defects beyond mere form
- American Casualty: a curable certificate omission on a dismissal motion
- Fredette: missing certificates did not make notarized affidavits inadmissible
For review of a particular document or motion record, contact the firm. This note is general information, not an assessment of a pending case.
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.
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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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