CPLR § 2309: What’s the point?

CPLR § 2309 Oaths and affirmations
(c) Oaths and affirmations taken without the state.

CPLR § 2309 has been watered down so as to be non-existent.  And from what I can tell, it serves no useful purpose.  Why not just scrap the damn thing.  I really don’t care whether we have the section or not; however, it’s dumb to keep it there for the sake of keeping it there.

Why the sudden outburst?

JT over at No-Fault Defender has been going on and on and on about 2309. And after seeing several decisions on the issue, came to the same conclusion.  Actually, he came to the conclusion first.  We do however, disagree as to the application of 2309.  I say, if it’s there, just apply the damn thing.  Don’t get cute with it.  Don’t allow parties to fix it at the appellate level, like the Appellate Term did in Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 2010 NY Slip Op 50043(U) (App. Term, 1st, 2010):

Order (Raul Cruz, J.), entered October 16, 2008, reversed, without costs, motion granted and complaint dismissed on the condition that defendant, within 60 days of service upon it of a copy of this order with notice of entry, files with the Clerk of the Civil Court and serves upon plaintiffs an affidavit of Steven Esteves that is accompanied by a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey. In the event defendant fails to duly file and serve such an affidavit, the order is affirmed, without costs.

The affidavit submitted by defendant of its employee (Esteves) established defendant’s entitlement to summary judgment dismissing this action to recover first-party no-fault benefits. Plaintiffs, however, raised a timely objection to the form of this affidavit, asserting that it did not comply with CPLR 2309(c). Specifically, plaintiffs correctly note that the affidavit failed to include a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey, the state in which the oath was administered (see CPLR 2309[c]; Real Property Law § 299-a[1]; PRA III, LLC v Gonzalez, 54 AD3d 917 [2008]). Inasmuch as the document can be given nunc pro tunc effect once the appropriate certificate is obtained (Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833, 834 [1989]; see Moccia v. Carrier Car Rental, Inc., 40 AD3d 504, 505 [2008]; see also Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, ___AD3d___, 2009 NY Slip Op. 09713 [Dec. 29, 2009]), we reverse the order and grant defendant’s motion for summary judgment dismissing the complaint on the conditions stated above (cf. Sandoro v Andzel, 307 AD2d 706, 708-708 [2003]).

JT made a very similar suggestion right before the decision was published.  What happens if defendant screws up the 2309(c) affidavit?  It happens more often than you think.

3 thoughts on “CPLR § 2309: What’s the point?”

  1. Dave, I think 2106 and 2309(c) should be scrapped in their entirety. I would like a system similar to the federal, New Jersey and California systems where anybody can affirm under penalties of perjury. The era of formal affidavits should come to an end.

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  2. Can anyone point me to an example of an appropriate certificate under 2309(c) for an out of state Affidavit submitted in support of a motion for summary judgment? I want to make sure I get the language right.

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  3. Your best bet it to find an Appellate Division decision, from the Department you are in, where the Court found the Certificate of Conformity to be sufficient, then pull the papers. Sometimes the Clerks can be helpful and provide you with copies of certificates that they haven’t rejected (for defaults). I think westlaw and lexis have forms based on prior litigation where the lower court or appellate court accepted the certificate.
    Unless it is profoundly screwed up, most courts accept it without issue.

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