Second Department Analyzes Rules Applying to the Admissibility of Out-of-State Affidavits

On August 13, 2014, the Second Department issued a decision in Midfirst Bank v. Agho, 2014 NY Slip Op. 05778, clarifying the law relating to the conformity of out-of-state affidavits as required by CPLR 2309(c).

In Midfirst Bank, the Second Department prefaced its decision with an explanation of the salience of the foreign affidavit issue:

Our Court is observing a significant upswing in the number of appeals where the parties are contesting the admissibility of affidavits executed outside of the state, without CPLR 2309(c) certificates of conformity. The issue has arisen in varied summary judgment and default motion contexts, including motions in residential mortgage foreclosure actions reliant upon affidavits of out-of-state bank employees, motions in medical malpractice actions reliant upon out-of-state physician experts, motions in slip-and-fall actions reliant upon out-of-state witnesses, motions in actions brought pursuant to Insurance Law § 3420(a), motions in motor vehicle negligence actions reliant upon out-of-state experts, and motions in contract actions reliant upon out-of-state expert contractors. We use the instant appeal as an occasion to clarify the law relating to the conformity of out-of-state affidavits as required by CPLR 2309(c).

As to the question at issue in the appeal--the admissibility of an affidavit signed outside of New York in support of a foreclosure action--the Second Department explained the application of CPLR 2309 (and particularly the distinction between a certificate of authentication and a certificate of conformity) as follows:

CPLR 2309(c) provides that an "oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by [a] certificate . . . as would be required to entitle a deed acknowledged without the state to be recorded within the state." The obvious purpose of CPLR 2309(c) is to assure that sworn documents executed outside of New York, perhaps under different standards or procedures, are executed in a manner that meets New York's reliability standards, as equivalent to the execution requirements for the recording of a deed.

The certificate required by CPLR 2309(c), commonly referred to in case law as a certificate of conformity, must contain language attesting that the oath administered in the foreign state was taken in accordance with the laws of that jurisdiction or the law of New York. A certificate of conformity is separate and distinct from a certificate of authentication, which attests to the oathgiver's authority under the foreign jurisdiction to administer oaths. In other words, a certificate of conformity speaks to the manner in which a foreign oath is taken, whereas a certificate of authentication speaks to the vested power of the individual to administer the oath. A certificate of authentication is sometimes colloquially referred to as a flag.

Real Property Law § 299 identifies certain officers who may, for the conveyance of real property situated in New York, acknowledge the conveyance outside of New York. The specified officers are judges of an out-of-state court having a seal, clerk, or other certifying officer; mayors or other chief civil officers of foreign political subdivisions; notary publics of the foreign state; commissioners of deed appointed by the foreign state to take acknowledgments; and any other persons authorized by the foreign state to take acknowledgments or proof of deed for recording them therein. As relevant to New York practice, the notary public is the foreign state officer who will most often be observed acknowledging affidavits and other documents for filing in our state.

Further, Real Property Law § 311(5) provides that no certificate of authentication shall be required to entitle a conveyance to be . . . recorded in this state when acknowledged or proved before any officer designated in section 299 of the Real Property Law which, as noted, are foreign judges, mayors, notaries, commissioners, and other persons designated by such state to take acknowledgments or proof of deeds to be recorded.

A combined reading of CPLR 2309(c) and Real Property Law §§ 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 to attest to the notary's authority to administer oaths. Real Property Law § 311(5) exempts the officers enumerated in Real Property Law § 299, such as foreign notaries, from the requirement for a certificate of authentication. A certificate of authentication becomes necessary when an out-of-state acknowledgment is provided by a foreign officer other than one enumerated in Real Property Law § 299, or when the acknowledgment is taken in foreign countries other than Canada, or by foreign mayors or chief civil officers not under seal (see Real Property Law § 311[2]-[4]).

Nevertheless, CPLR 2309(c) requires that even when a notary is the foreign acknowledging officer, there must still be 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. In other words, a certificate of conformity is required whenever an oath is acknowledged in writing outside of New York by a non-New York notary, and the document is proffered for use in New York litigation.

(Internal quotations and citations omitted) (emphasis added). The Second Department went on to explain the requirements for a certificate of conformity:

To assist practitioners in establishing that a foreign attestation is adequate, the legislature enacted in 1998, and amended in 2002, Real Property Law § 309-b. Specifically, the statute provides template language for a certificate of acknowledgment or proof of execution, made without this state, for real property conveyances within the state. In general, it provides guidance for CPLR 2309(c) purposes, as to whether an out-of-state acknowledgment is taken in conformity with New York law. The template language of Real Property Law § 309-b(1) reads:

State, District of Columbia,

Territory, Possession,

or Foreign Country ) ss:

On the ___ day of ____ in the year ___ before me, the undersigned, personally appeared ________________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

(Signature and office of individual taking acknowledgment)

Out-of-state affidavits need merely conform substantially to the foregoing statutory template to be adequate.

Here, the Supreme Court erred in concluding that the Mills affidavit was not accompanied by a certificate of conformity, as the Uniform, All Purpose Certificate of Acknowledgment, appended to the Mills affidavit, substantially conformed with the template requirement of Real Property Law § 309-b and constituted a certificate of conformity. The Uniform, All Purpose Certificate of Acknowledgement attested that the notary public, Mark R. Pitts, confirmed Josh Mills's identity when Mills executed his affidavit in Pitts' presence on the date the affidavit was executed, and was signed by Pitts alongside his notary seal. Moreover, since Mills's signature upon the affidavit was acknowledged by a notary licensed in Oklahoma, no separate certificate of authentication was required.

Accordingly, Mills's affidavit was in proper admissible form for consideration by the Supreme Court. . . .

(Internal quotations and citations omitted). Finally, the Second Department explained that the failure to provide a certificate of conformity is a curable defect:

Parenthetically, we note that even if the Mills affidavit was not accompanied by a certificate of conformity, the Appellate Division, Second Department, has typically held, since 1951, that the absence of a certificate of conformity is not, in and of itself, a fatal defect. The defect is not fatal, as it may be corrected nunc pro tunc, or pursuant to CPLR 2001, which permits trial courts to disregard mistakes, omissions, defects, or irregularities at any time during an action where a substantial right of a party is not prejudiced. Thus, even if the certificate of conformity was inadequate or missing, no substantial right of the defendants is prejudiced. As they failed to oppose the plaintiff's motion or raise the issue, it was inappropriate for the Supreme Court to, sua sponte, do so on the defendants' behalf. Therefore, the order is reversed insofar as appealed from, on the law, and those branches of the plaintiff's motion which were for summary judgment on the complaint and to appoint a referee to compute the sums due and owing under the subject mortgage are granted.

(Internal quotations and citations omitted).