The following papers read on this motion:Order to Show Cause and Affidavit XAffirmation in Opposition XReply Affirmation XThe petitioners move for an order pursuant to RPAPL §1921(2) to cancel and discharge the mortgage of record in the amount of one hundred thirty-five thousand and 00/100 dollars, ($135,000.00), dated January 31, 2001 and recorded on February 8, 2001 under Liber 20767, Page 96, and directing the city registrar or clerk of any county in whose office the same may have been recorded to mark the same upon his records as canceled and discharged, and further ordering and directing that the debt or other obligation secured by the mortgage be canceled, pursuant to RPAPL §1921(1) for an award of one thousand five hundred and 00/100 dollars, ($1,500.00), for defendant’s failure to provide a satisfaction within ninety (90) days, and pursuant to RPAPL (7) for an award of costs and reasonable attorneys’ fees. The respondent submits opposition. The petitioner submits a reply. The petitioner annexes a copy of a check made payable to the respondent in the sum of one hundred forty-three thousand three hundred seventeen and 00/100 dollars. ($143.317.00), dated July 25, 2003, and Satisfaction of Mortgage signed by the petitioner providing that the mortgage was satisfied on July 25, 2003. The respondent’s contention, in opposition, that he does not “recall” receiving the check or signing the Satisfaction of Judgment is unavailing.As to respondent’s failure to attach a certificate of conformity, the failure is not fatal. CPLR §2303 (c) provides, in pertinent part, as follows:“[a]n oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate…acknowledged before the officer who administered the oath or affirmation. In another words, an out-of-state affidavit must be accompanied by a “certificate of conformity”.The statute’s “mission is, in part, to require a certificate documenting that the procedures followed in completing the oath or affirmation conform with the laws of the jurisdiction where taken, or New York.” (C2309:3). “When an oath or affirmation is taken outside New York State, it must, for use in New York litigation, be accompanied by a ‘certificate of conformity’ attesting that the oath was administered in accordance with the laws of the jurisdiction where taken, or the laws of New York.” (Id). However, some courts overlook a failure to comply with the statute in its entirety. The Second Department in Smith v. Allstate Ins. Co., 38 A.D.3d 522, noted that the plaintiff’s failure to include a certificate with her out-of-state affidavit was “not a fatal defect.” (Id). The court in Nandy v. Albany Med. Ctr. Hosp., 155 A.D.2d 833, rejected the defendant’s argument that plaintiff’s failure to comply with the statute and provide a certificate of conformity to the affidavit of the doctor submitted by plaintiff in opposition to the defendant’s motion for summary judgment and stated that rejecting the document “would only result in further delay because it can be given nunc pro tunc effect once properly acknowledged.” (Id)The Second Department in Hunter Sports Shooting Grounds, Inc. v. Foley, 120 A.D.3d 759, found that the lower court properly denied the Town’s motion for summary judgement “without prejudice to timely renewal, upon submission of proper papers” when the Town failed to submit a certificate of conformity along with its expert’s out of state affidavit. However, the Town, instead of renewing its prior motion, made a second motion for summary judgment instead of correcting the defects in the prior supporting papers, and as so, the lower court properly denied the Town’s second motion on the ground it was an improper successive motion for summary judgment. (Id). The Second Department, previously in Pra III, LLC v. Gonzalez, 54 A.D.3d 917, noted that the affidavits submitted by the plaintiff, signed and notarized outside of the state of New York, were unaccompanied by the requisite certificate of conformity, and plaintiff made no attempt to rectify the defect. Thereafter, the Second Department stated that “[a]lthough the affidavit of the defendant’s expert, which was notarized outside the state, failed to conform to the requirements set forth in CPLR 2309 (c), contrary to the Supreme Court’s determination, such defect was not fatal as the plaintiff was not prejudiced thereby.” (Betz v. Daniel Conti, Inc., 69 A.D.3d 545, citing Smith v. Allstate Ins. Co., 38 AD3d 522 and Falah v. Stop & Shop Cos., Inc., 41 AD3d 638).Thereafter, the Second Department in Bey v. Neuman, 100 A.D.3d 581, stated that contrary to the defendant’s contention, the court may consider the affirmation of plaintiff’s expert, and out-of-state orthopedic surgeon, submitted in opposition to the defendant’s motion to demonstrate that the defendant departed from good and accepted medical malpractice, even though it lacked a certificate of conformity. Notably, the court considered the affidavit, and found it insufficient on other grounds.(Id). Recently, the Second Department used an appeal on Midfirst Bank v. Agho, 121 A.D.3d 343, to further clarify stating “[w]e use the instant appeal as an occasion to clarify the law relating to the conformity of out-of-state affidavits required by CPLR 2309 (c).” The court in such action stated that a combined reading of the statute and Real Property Law Secs. 299 and 311(5) “leads to the inescapable conclusion that where, as here, a document is acknowledged by a foreign state notary, a separate ‘certificate of authentication’ is not required,” nevertheless CPLR 2309 (c) requires a “certificate of conformity” to assure that the oath was administered in a manner consistent with either the laws of New York or of the foreign state. (Id). The Court noted that the affidavit at issue contained a “Uniform, All Purpose Certificate of Acknowledgment” and noted that the absence of a certificate of conformity was not, in and of itself, a fatal defect. (Id, citing Mack-Cali Realty, L.P. v. Everfoam Insulation Sys., Inc., 110 AD3d 680, Bey v. Neuman, 100 A.D.3d 581, Fredette v. Town of Southampton, 95 A.D.3d 940, Falah v. Stop and Shop Cos., Inc. 41 AD3d 638, Smith v. Allstate Ins. Co., 38 A.D.3d 832, Raynor v. Raynor, 279 App.Div. 671). More recently, the Appellate Term, Second Department held that although the claims representative’s affidavit, notarized outside of the state of New York, was not accompanied by a certificate of conformity, such absence was not a fatal defect, “as the defect may be disregarded pursuant to CPLR 2001 where a substantial right of a party is not prejudiced.” (Healing Art Acupuncture, P.C. v. Amica Mut. Ins. Co., 46 Misc.3d 138(A).The Court in Eastern Star Acupuncture, P.C. v. Clarendon Nat. Ins. Co., 26 Misc.3d 131(A), reversed the lower court’s denial of defendant’s motion for summary judgment, and granted defendant’s motion for summary judgment on the conditions that the defendant submit a certificate of conformity within sixty days of service of the order with notice of entry. The court took notice of the fact that the plaintiff made a timely objection to the form of the affidavit, asserting that it did not comply with CPLR 2309 (c) and stated that “[i]nasmuch as the document can be given nunc pro tunc effect once the appropriate certificate is obtained,” the lower order was reversed. (Id)In Pierre v. Young, 39 Misc.3d 1218(A), in stating that some defects such as the absence of a certificate of conformity are considered “sufficiently technical and non-prejudicial that they may be ignored by the court even when the party has objected,” whereby such error can be considered “inadvertent,” referred to the holding in Hackney v. Monge, 103 AD3d at 844, the Second Department found it “error for the trial court to deny leave to renew when the document in admissible form is later proffered.”Here, the absence of the certificate of conformity in respondent’s opposition papers is not a fatal defect and the petitioner has not been substantially prejudiced. Furthermore, a denial of respondent’s request to submit the certificate of conformity, allowing renewal at a later date, would only serve to further delay the proceedings herein. Accordingly, consideration of the certificate of conformity may be given nunc pro tunc.Upon the foregoing, it is herebyORDERED that the petitioner’s motion, by way of Order to Show Cause is granted, and it is hereby furtherORDERED that the petitioner is hereby directed to Settle Order on Notice. A copy of this order with notice of entry shall accompany the proposed order.ENTER:Dated: May 31, 2018
