121 A.D.3d 343
N.Y. App. Div.2014Background
- Midfirst Bank filed a mortgage foreclosure action in Kings County based on defendants' default beginning August 1, 2009 and assigned the note and mortgage through successive entities to Midfirst Bank.
- Defendant Mabel Agho answered while Rita Fashek appeared but did not answer; the defendants failed to appear at four CPLR 3408 settlement conferences.
- Plaintiff moved for summary judgment and to appoint a referee; it relied on an affidavit by Josh Mills detailing the mortgage, assignments, default, and notice compliance.
- Mills's affidavit was executed in Oklahoma (September 20, 2012) and included a jurat and a Uniform, All Purpose Certificate of Acknowledgment.
- The Supreme Court denied the motion, holding that the out-of-state notary without a CPLR 2309(c) certificate of conformity rendered the affidavit inadmissible.
- This appeal challenges that ruling and seeks reversal so that summary judgment and appointment of a referee are granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mills's out-of-state affidavit was admissible | Midfirst argues the certificate of conformity suffices under CPLR 2309(c). | Agho argues lack of proper conformity renders the affidavit inadmissible. | Yes; certificate of conformity deemed adequate; affidavit admissible. |
| Whether lack of a separate certificate of authentication was fatal | No separate authentication needed when officer is enumerated by Real Property Law § 299/311(5). | Defendants contend defect could prejudice substantial rights. | Not fatal; no separate authentication required; substantial rights not prejudiced. |
| Whether Mills's affidavit established prima facie entitlement to summary judgment | Affidavit and exhibits prove mortgage, assignments, default, and defenses lacking merit. | Defenses should be considered if triable issue exists; none were raised. | Plaintiff showed prima facie entitlement to summary judgment. |
Key Cases Cited
- Freedom Mortgage Corp. v. Toro, 113 A.D.3d 815 (2d Dept 2014) (out-of-state affidavits and CPLR 2309(c) implications discussed)
- U.S. Bank N.A. v. Dellarmo, 94 A.D.3d 746 (2d Dept 2012) (conformity considerations for out-of-state affidavits)
- Mack-Cali Realty, L.P. v. Everfoam Insulation Sys., Inc., 110 A.D.3d 680 (2d Dept 2013) (certificate conformity generally not fatal when rectifiable)
- Bey v. Neuman, 100 A.D.3d 581 (2d Dept 2012) (certificate of conformity issues addressed in out-of-state affidavits)
- Fallah v. Stop & Shop Cos., Inc., 41 A.D.3d 638 (2d Dept 2007) (considering out-of-state witnesses and admissibility)