Key Takeaway
Donsimoni treated a missing conformity certificate as curable and rejected summary judgment. Read the actual ruling and the current affirmation alternative.
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: Donsimoni allowed a certificate defect to be cured; CPLR 2309(c) still governs outside-state oaths, while the current affirmation guide explains the separate CPLR 2106 option.
Donsimoni v Fall, 154 AD3d 467 (1st Dept 2017) kept the plaintiff’s accident claim alive. After reargument, the motion court denied the defendant’s summary-judgment motion. The First Department affirmed: the affidavit of merit raised factual and credibility issues about how the accident happened.
Why the missing certificate did not decide the motion
The affidavit had been acknowledged before a vice-consul at the U.S. Embassy in Paris. It lacked a conformity certificate. The appellate court treated that omission as an irregularity that could be corrected retroactively if necessary. It did not identify the affidavit as a foreign expert’s report, and it did not award judgment to the plaintiff.
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The plaintiff still had to raise a factual issue. Offering a certificate would not, by itself, repair every defect in the proof. The oath, the asserted defect and the motion record remain separate questions.
Conformity and the current alternative
CPLR 2309(c) addresses oaths administered outside New York through its certificate framework. It does not impose one certificate requirement on every document originating abroad.
For covered statements, CPLR 2106 now offers a signed New York perjury affirmation instead. It retains specified exceptions and does not abolish the rules for an administered oath or matrimonial acknowledgment. Donsimoni remains useful when the submission actually uses the oath-and-certificate route.
Jason’s original comment
This was Jason’s reaction in 2017. Donsimoni permitted a cure on its record; it did not promise that offering a certificate ends every dispute.
It is amazing that the Court actually countenanced the certificate of conformity argument in the first place.
Frequently Asked Questions
What is a certificate of conformity under CPLR 2309?
It concerns conformity of an outside-state oath with the applicable law. CPLR 2309(c) uses the certificate framework for recording an out-of-state acknowledged deed; the document, officer and execution procedure matter.
Is a missing certificate of conformity fatal to an affidavit in New York?
Not automatically. Donsimoni treated the omission as curable if necessary and found factual issues defeating the defendant’s motion. It did not promise that every defective submission will be accepted.
Do I still need a certificate of conformity after the 2024 CPLR 2106 amendment?
A compliant CPLR 2106 affirmation is a separate procedure for covered statements. If the document instead uses an administered outside-state oath, CPLR 2309(c) still requires attention.
Connect to the Encyclopedia
- CPLR 2106: current affirmation rules and historical affidavit cases
- Green: an excluded affidavit on default vacatur
- Furtow: an adequate oath recital and jurat
- Watabe: language and electronic-signature objections
- Ramirez: signature format and admissible proof
For review of a particular motion, keep the signed reports, supporting records, objections and court orders together and contact the firm. This historical note is general information, not an assessment of an individual 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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The First Department's newest inconsistent position on 2309
Green excluded an affidavit on a default-vacatur motion in 2010. Compare Donsimoni's later cure ruling and the current CPLR 2106 alternative.
May 2, 2010
Renewal Under Certain Circumstances May Be Granted to Correct an Improper Affirmation: A Comprehensive Guide to CPLR 2106 Requirements
Arkin v Resnick allowed a discretionary affirmation correction on renewal. Learn the limits of CPLR 2221 and distinguish current affirmation form from evidence.
Dec 5, 2009
Certificate of conformity waived
Court rules on certificate of conformity requirements for affidavits in default judgment motions, finding waiver of CPLR 2309(a) defects is permissible.
Nov 20, 2014
Certificate of acknowledgment can possibly(?) be cured nunc-pro-tunc
NY appellate court rules certificate of acknowledgment defects in prenuptial agreements may be cured nunc pro tunc with proper evidence of contemporaneous execution.
Jun 18, 2012Frequently Asked Questions
Common Questions About This Topic
3 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
What is a certificate of conformity under CPLR 2309?
It concerns conformity of an outside-state oath with the applicable law. CPLR 2309(c) uses the certificate framework for recording an out-of-state acknowledged deed; the document, officer and execution procedure matter.
Is a missing certificate of conformity fatal to an affidavit in New York?
Not automatically. Donsimoni treated the omission as curable if necessary and found factual issues defeating the defendant's motion. It did not promise that every defective submission will be accepted.
Do I still need a certificate of conformity after the 2024 CPLR 2106 amendment?
A compliant CPLR 2106 affirmation is a separate procedure for covered statements. If the document instead uses an administered outside-state oath, CPLR 2309(c) still requires attention.
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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.
If you need legal help with a 2106 and 2309 matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
