Elizabeth R. E. v Doundley A. E.

Matter of Elizabeth R.E. v Doundley A.E. 2007 NY Slip Op 07348 [44 AD3d 332] October 4, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

In the Matter of Elizabeth R.E., Respondent,
v
Doundley A.E., Appellant.

—[*1] Ronald Cohen, Wilmington, N.C., for appellant.

Bryan J. Hutchinson, Bronx, for respondent.

Order, Supreme Court, Bronx County (Diane Kiesel, J.), entered on or about July 27, 2006, which denied respondent's motion to vacate an order of protection, unanimously affirmed, without costs.

Respondent, who seeks to vacate the order of protection on the ground that petitioner suborned perjury at the hearing, submits the affidavit of a witness at the hearing stating that his testimony against respondent was false. The affidavit was purportedly sworn to before a notary in Jamaica, but lacked the authenticating certificate required by CPLR 2309 (c). Although such a defect can be corrected nunc pro tunc (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]), respondent has at no time offered to do so. Accordingly, we affirm (cf. id. at 504-505; see Mercantile Natl. Bank of Chicago v Wismer, 48 Misc 2d 275, 276 [App Term, 1st Dept 1965]). Concur—Andrias, J.P., Sullivan, Catterson, McGuire and Malone, JJ.