Key Takeaway
New York's First Department continues its inconsistent approach to CPLR 2309 certificate of conformity requirements, allowing technical defects to be corrected nunc pro tunc.
Certificate of Conformity Requirements: Another Lenient Ruling
New York’s CPLR 2309 requires foreign documents to be accompanied by a certificate of conformity to be admissible in court proceedings. This technical requirement has been the subject of numerous appellate decisions, with courts taking varying approaches to enforcement. The First Department’s treatment of these procedural requirements has been particularly inconsistent over the years, sometimes strictly enforcing the rule while other times allowing substantial flexibility.
The recent Donsimoni v Fall decision exemplifies the court’s continued willingness to excuse technical deficiencies in foreign document authentication. This case involved an affidavit of merit from a foreign expert that was properly notarized by U.S. Embassy officials but lacked the required certificate of conformity under CPLR 2309.
Jason Tenenbaum’s Analysis:
Donsimoni v Fall, 2017 NY Slip Op 07092 (1st Dept. 2017)
“The fact that plaintiff’s lone affidavit of merit in opposition to defendant’s summary judgment was acknowledged by a vice-consul in the U.S. Embassy in Paris, France, yet was submitted without a requisite certificate of conformity (see CPLR 2309; Real Property Law § 301, et seq.), constituted an irregularity that could be corrected nunc pro tunc, if necessary (see DaSilva v KS Realty, L.P., 138 AD3d 619 ; Gyamfi v Citywide Mobile Response Corp., 146 AD3d 612 )….”
It is amazing that the Court actually countenanced the certificate of conformity argument in the first place.
Key Takeaway
The First Department’s decision reflects its ongoing liberal approach to CPLR 2309 compliance issues. Rather than strictly enforcing technical requirements that could exclude otherwise reliable foreign documents, the court continues to allow these procedural deficiencies to be remedied after the fact through nunc pro tunc corrections.
