Lately, it seemed like the Courts were treating it as if did not exist, allowing parties to cure the defect whenever they wanted and even after the motion was submitted. Not the case here.
Attilio v Torres, 2020 NY Slip Op 01578 [1st Dept. 2020]
We did not consider the affidavits by defendants’ putative expert biomechanical engineer, because they were notarized without the state and not accompanied by the requisite certificate of conformity (see CPLR 2309[c]; see generally Midfirst Bank v Agho, 121 AD3d 343, 350 [2d Dept 2014]). Moreover, the technical defect was not corrected, despite plaintiff’s timely objection in opposition to defendants’ motion (compare Sanchez v Oxcin, 157 AD3d 561, 563 [1st Dept 2018] [“assuming” burden shifted to plaintiff based on engineer’s unsworn report, “since she did not object to its form”]; Shinn v Catanzaro, 1 AD3d 195, 197-198 [1st Dept 2003] [defendant’s argument that plaintiffs’ submissions were not in admissible form was unpreserved for appellate review and therefore waived]).
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