Notarization by Consular Official Meets CPLR 2309 Authentication Requirement

On July 3, 2014, Justice Demarest of the Kings County Commercial Division issued a decision in Sokolowski v. Wodkiewicz, 2014 NY Slip Op. 31709(U), holding that notarization by a consular official met the authentication requirements of CPLR 2309.

In Sokolowski, the parties were litigating over the assets of a partnership. One procedural issue that arose in deciding the plaintiff's motion for summary judgment was whether "defendant's affidavit, which was acknowledged by a consul at the United States embassy in Warsaw, Poland, must be disregarded as defendant did not include a certificate of conformity pursuant to CPLR 2309(c)." The court held that the affidavit was admissible, explaining that "a consular official is explicitly authorized to acknowledge documents (see CPLR 2309[a]; Real Property Law §301), and CPLR 2309(c), operating in conjunction with Real Property Law § 311(4) and (5), does not require a certificate of authentication for the admissibility of an affidavit acknowledged in this manner." (Internal citations omitted).

Courts have refused to accept affidavits notarized outside the state that did not meet the authentication requirements of CPLR 2309(c), so it is important to know the ins and outs of the application of that rule.