Key Takeaway
American Casualty: a missing conformity certificate did not exclude the president's affidavit or defeat the negligence pleading.
This article is part of our ongoing 2106 and 2309 coverage, with 31 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.
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.
The missing certificate did not defeat the pleading in American Casualty v Motivated Security Services, 148 AD3d 521 (1st Dept 2017). The court considered the president’s out-of-state affidavit and affirmed denial of the security company’s motion to dismiss.
What the affidavit added
Although the defendant showed that SBF was not an intended third-party beneficiary of its security contract, the complaint, supplemented by the president’s affidavit, sufficiently alleged negligence through detrimental reliance. The contract documents did not conclusively establish the limited patrol responsibility the defendant asserted. The court was testing the pleading, not deciding liability after a trial.
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The president’s affidavit lacked a CPLR 2309(c) certificate of conformity. The court held that the omission was not fatal and could be corrected later under CPLR 2001. It did not announce that all out-of-state statements must be accepted regardless of execution or content.
Conformity is not authentication
Midfirst Bank v Agho explains the distinction: conformity concerns how the oath was administered; authentication concerns the officer’s authority. Its actual certificate was sufficient. Read CPLR 2309(c) with the document and officer involved, rather than assuming the same additional certificate is required for every submission.
Connect to the Encyclopedia
Start with the CPLR 2106 affirmations and affidavits hub for the current procedure and its historical cases.
- Clarke: conformity and notarial attestation are separate defects
- McMullin: medical proof offered in an improper surreply
- Fredette: missing certificates did not make notarized affidavits inadmissible
- New Way: apparent notarization before signing
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.
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.
31 published articles in 2106 and 2309
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More 2106 and 2309 Analysis
CPLR 2309 Certificate of Conformity: First Department Excuses the Defect Again
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And this is why computerized range of motion testing is medically necessary – yet, not admissible.
Simanovskiy rejected computerized test results lacking personal-knowledge proof. Read the holding, Perl's later timing rule and the historical limits.
Apr 23, 2010
2106 again…
St. Vincent's 2009 no-fault appeal separates record foundation, mailing and medical proof. Current CPLR 2106 and appeal-deadline distinctions are explained.
Apr 30, 2009
Death knell to 2309(c)
Court of Appeals case on CPLR 2309(c) compliance for out-of-state affidavits in New York no-fault insurance litigation, establishing proper notarization standards.
Aug 20, 2014
CPLR 2309(c) Certificate of Conformity: Not a Fatal Defect in New York Litigation
Fredette: missing conformity certificates, separate expert-proof defects, and why the 2012 opinion did not abolish CPLR 2309(c).
May 17, 2012Was this article helpful?
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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