By: Akanksha A. Panicker
Legal documents can be numerous and difficult to navigate. However, behind the jargon is the requirement of every piece of paperwork to provide a RECORD of fact to ensure that all proceedings are done in a fair manner. The high stakes of Real Property Law attest to this. Thus, to help the NY commercial debt recovery litigation, affidavits may be sworn outside New York State. For the consideration for the out-of-state affidavit as documented proof in the New York Court case, it should be accompanied by a Certificate of Conformity.
The Certificate of Conformity includes documents that ensure the Court that the notarization is in accordance with the statute of the state where the Affidavit was registered.
[1.0] HOW TO CREATE A CERTIFICATE OF CONFORMITY
The paperwork must be authenticated before a Notary Public by an attorney practicing in the same state as where the Affidavit was generated. In reality, it should be done concurrently with the affidavit. Since this is a New York State statute that is only applied in New York State, it is normal for an attorney working outside of New York State to be unaware of the provision. After all, a private debt recovery and collection litigation practitioner in New York is unlikely to be acquainted with the rules of another jurisdiction (unless they were practicing in that state).
Through executing the Certificate of Conformity, that attorney confirms that the Affidavit was properly notarized. This forms the essence of the Certificate of Conformity. The attorney may not need to be acquainted with the prosecution’s specifics since they are not testifying anything else related to the case. A clear illustration of this principle is the Notary Public. A Notary is solely liable for ensuring that a certificate is signed correctly and by the right individual. The same logic applies to the counsel who signs the Certificate of Conformity.
[1.1] WHICH LAWS ARE RESPONSIBLE FOR THE CERTIFICATE
The New York State Law CPLR 2309(c) and RPL-299-a work in conjunction with the conformity certificate. The requirement of this certificate, however, was a recent one. Courts actually allowed NY commercial debt collection litigation attorneys and others to merely submit affidavits signed and notarized outside of New York State without the Certificate.
Almost all New York courts. Presently follow the statute and are required to now mandate the affidavit of conformity to be combined with the affidavit to process applications. There will be a problem if affiants conduct their affidavits outside of New York state, however.
[2.0] PROCEDURE AND RATIONALE BEHIND THE CERTIFICATE OF CONFORMITY
The acknowledgment of proof is the most important factor of the Certificate of Conformity in the context of New York’s statutes. If the acknowledgment or proof is taken anywhere outside the state in the manner prescribed by that state or other place, it would require specifically to be proved to be in accordance with those laws. Consequently, it must be accompanied by a certificate to the effect that it conforms with such laws. The Certificate of Conformity essentially simplifies this requirement by existing as the document of proof.
Only individuals who are qualified and authorized by law can create a Certificate of Conformity. Such certificate may be made by an attorney at law who is [A.] admitted to practice in the state of New York, resident in the place where the acknowledgment or proof is taken, or by [B.] by law admitted to practice in the state where the acknowledgment or proof is taken. However, this requirement is not exhaustive. Any individual can create this Confirmation if they are deemed qualified to do so by any court of the state of New York. The precondition is that in any action or proceeding pending before that court, the acknowledgment as emanating from that individual should not abrogate the laws of that state or territory. The application for this certificate should not be manifestly unfounded on the application for such determination.
The judge or other presiding judicial officer is required to append to the instrument their signature. Essentially, this judicial officer is required to so acknowledge or prove via their signed statement that they deemed such a person qualified to make such a certificate. The working assumption is that the signature is genuine and held against the credibility of the signer. To ensure the same, it is necessary to establish the person’s qualification whose name is signed in their authorized capacity to make the certificate. This is established in the recital of the certificate at the end.
It must be noted that it is this statement the officer makes that states they deemed the person making such certificate qualified. This way, it shall establish the qualification of the person designated therein to make such a certificate. This also means that the recording, filing, registering, or use as evidence of the instrument is not dependant on the court’s power to make the statement. Consequently, the Certificate is sufficient on its own, and there is no need for more proof of any action, proceeding, matter, or application to corroborate the certificate.
Additionally, whenever the instrument in question is accompanied by The Certificate of Conformity and the officer’s statement, it is sufficient that any further acknowledgment adheres to the proofs of the state in question. This is done to ensure that the filing of records and the authentication of proof can be applied with any records office in the state. Additionally, this can be registered and protected upon tendering of any fees required. In fixing the fees of a recording, filing, or registering officer, the Certificate of Conformity and a judicial officer’s statement appended, if any, shall be treated as certificates of authentication.
[4.0] DISTINGUISHING BETWEEN A CERTIFICATE OF CONFORMITY AND A CERTIFICATE OF AUTHENTICATION
Case laws have had to be put forth the clarify the requirement of this Certificate of Conformity since it is a relatively recent requirement. Midfirst Bank v. Agho is an important judgment in this context. The judgment was pronounced on August 13, 2014, clarifying the legislation pertaining to the conformity of out-of-state affidavits as required by CPLR 2309. (c).
In this case, the relevant judgment was reversed in the appeal. The reversal specified the application of the CPLR 2309 by the Second Department. A Certificate of Authentication and a Certificate of Conformity were separated herein, providing that a Certificate of Conformity referred to the form taken by a foreign oath. The Certificate of Authentication stemmed from the vested power of the individual to administer the oath. In this case, this distinction was important because of the presence of the notarization of the document. Since the document was notarized, no ‘Certificate of Authentication was needed, and the ‘Certificate of Conformity which was provided was adequate under New York law:
The statutory aim of CPLR 2309(c ) is to ensure that sworn documents that have been executed outside of New York, perhaps under various conditions or protocols, are executed in a way that satisfies New York’s reliability standards, as similar to the execution specifications for documenting a deed.
The certificate required by CPLR 2309(c), the Certificate of Conformity, may include terminology attesting that the oath administered in the foreign state was undertaken in conjunction with the laws of that jurisdiction or the laws of New York. A Certificate of Conformity is distinct from a Certificate of Authentication, which attests to the oath giver’s authority to conduct oaths within the other jurisdiction.
At this juncture, Real Property Law 299 has also specifically distinguished those officers who can recognize the conveyance of real property outside of New York for the express purpose of conveyance of real property located in New York. These specific officers are [A.] judges of an out-of-state court with a seal, clerk, or other certifying officers; [B.] mayors or other chief civil officers of foreign political subdivisions; [C.] notaries public of the other state; [D.] commissioners of deed designated by the other state to take acknowledgments; and[E.] all other persons approved by the external state to adopt acknowledgments or proof of deed for the record. In New York, the notary public is the external state official who is more often seen acknowledging affidavits and other records for filing in the state of New York.
This provision essentially provides that a document that the foreign state’s notary already acknowledges does not require a separate Certificate of Authentication. However, it must be noted that the Certificate of Conformity is imperative whenever an oath is acknowledged in writing outside of New York by a non-New York notary. If this is not done, the document cannot be acceptable in New-York centered litigation.
A combined reading of CPLR 2309(c) and Real Property Law § 299 and 311(5) leads to the unavoidable implication is that when a foreign state notary recognizes a report, no special Certificate of Authentication’ is needed to testify to the notary’s competence to administer oaths. In sum, where an oath is accepted as written evidence outside of New York by a non-New York notary. The declaration is provided for use in New York litigation; a Certificate of Conformity is needed.
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1. Or by the laws of the state, District of Columbia, territory, possession, dependency, or other places where the acknowledgment or proof is taken
2. New York Consolidated Laws, Real Property Law – RPP § 299-a. Acknowledgment to conform to the law of New York or place were taken; Certificate of Conformity
(c) When an instrument so acknowledged or proved is accompanied by the Certificate of Conformity and the statement of a judicial officer, if any be required, the acknowledgment or proof of the instrument, for recording, filing, or registering in any recording or filing office in this state or for use as evidence, shall be equivalent to one taken or made in the form prescribed by law for use in this state; and if the acknowledgment or proof is properly authenticated, where authentication is required by law, and if the instrument is otherwise entitled to record, filing or registering, such instrument, together with the acknowledgment or proof, the Certificate of Conformity and any Certificate of Authentication or statement of a judicial officer, may be recorded, filed or registered in any recording or filing office in this state, and shall be so recorded, filed or registered upon payment or tender of lawful fees therefor. In fixing the fees of a recording, filing, or registering officer, the Certificate of Conformity and the statement of a judicial officer appended, if any, shall be treated as certificates of authentication required by other provisions of this chapter.
3. Midfirst Bank v. Agho, 2014 NY Slip Op. 05778, 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 contest 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).
4. As CPLR 2309(c) provides that an ‘oath or affirmation taken without the state shall be treated as if taken within the state if [a] certificate accompanies it. . . as would be required to entitle a deed acknowledged without the state to be recorded within the state.’
5. 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 supra note 3
6. 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-). supra note 3
7. 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., supra note 3
8. 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 the foreign state. supra note 3