Key Takeaway
New York's First Department rules that lack of CPLR 2309 certificate of conformity for out-of-state affidavits is not fatal and can be corrected later.
Court Affirms Flexibility in CPLR 2309 Certificate Requirements
New York’s Civil Practice Law and Rules (CPLR) Section 2309 requires that affidavits made outside New York State include a certificate of conformity, verifying that the affidavit was properly executed according to the laws of the state where it was made. This technical requirement has been a source of confusion and litigation, with courts sometimes taking rigid positions that exclude otherwise valid evidence due to missing certificates.
The procedural landscape for out-of-state affidavits has evolved significantly over the years. The First Department has previously taken inconsistent positions on 2309 requirements, creating uncertainty for practitioners handling cases with multi-jurisdictional elements. This uncertainty has extended beyond simple affidavit issues to broader questions about compliance with procedural requirements in New York litigation.
The recent decision in American Casualty Company of Reading, Pa. v Motivated Security Services provides welcome clarity on this procedural issue, demonstrating the court’s willingness to prioritize substance over technical formalities.
Jason Tenenbaum’s Analysis:
American Cas. Co. of Reading, Pa. v Motivated Sec. Servs., Inc., 2017 NY Slip Op 01970 (1st Dept. 2017)
“The motion court properly considered the out-of-state affidavit of SBF’s president, even though it lacks a certificate of conformity (CPLR 2309). The lack of such certification is not a fatal defect and the irregularity may be corrected later (see Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, 68 AD3d 672, 673 ; CPLR 2001).”
Key Takeaway
This decision reinforces that missing CPLR 2309 certificates of conformity should not automatically disqualify out-of-state affidavits from consideration. Courts can accept such affidavits and allow parties to cure the technical defect later, preventing the exclusion of relevant evidence based solely on procedural oversights. This approach aligns with CPLR 2001’s directive that courts should not dismiss cases for technical defects when substantial justice can be achieved.
Legal Update (February 2026): Since this 2017 post, CPLR 2309 certificate requirements and judicial interpretations may have evolved through subsequent court decisions and potential regulatory amendments. Practitioners should verify current First Department precedents and any updates to affidavit compliance standards, as procedural requirements for out-of-state affidavits continue to develop through case law.
