Worldwide Asset Purch., LLC v Simpson

[*1] Worldwide Asset Purch., LLC v Simpson 2007 NY Slip Op 52174(U) [17 Misc 3d 1128(A)] Decided on November 13, 2007 Auburn City Ct McKeon, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 13, 2007
Auburn City Ct

Worldwide Asset Purchasing, LLC, Successor-in-Interest to Household Automotive Financial Corporation, Plaintiff

against

Edward Simpson, Defendant



CV05-0842



For the Plaintiff:

Amanda Moreno, Esq.

Sharinn & Lipshie, P.C.

Attorneys at Law

200 Garden Plaza Suite 506

Garden City, New York 11530

For the Defendant:

Carl Joseph DePalma, Esq.

172 State Street

Auburn, New York 13021

Michael F. McKeon, J.

In this action for monies due under a retail installment contract, plaintiff moves for summary judgment against the defendant. In support of its motion, plaintiff submitted an affidavit, signed by plaintiff's employee, as a person having knowledge of the facts. The affidavit was signed outside of New York State before a Notary Public commissioned in Cobb County, Georgia. Also included with plaintiff's motion papers was an attorney affirmation, the pleadings and copies of the retail installment contract and associated documents. Defendant has opposed this motion on the basis that plaintiff's motion papers are defective under CPLR §2309(c) and §3212(b) in that plaintiff's employee's affidavit was not accompanied by a certificate of conformity. [*2]

Under CPLR §2309(c), an oath or affirmation taken outside the state may be treated as if taken inside the state "if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation." CPLR §2309(c). Such certificate would be a certificate of conformity, required under RPL §299-a (1), "which certifies that the manner in which the acknowledgment or proof was taken conforms with the laws of the appropriate jurisdiction." (Ford Motor Credit Co. v. Prestige Gown Cleaning Service, Inc., 193 Misc 2d 262, [Civ Ct, Queens County 2002]). Under these provisions, for an affidavit that is signed and notarized outside of New York State to be admissible, it must be accompanied by a certificate of conformity. (See, MBNA America Bank, N.A., v. Nelson, 15 Misc 3d 1148A, 2007 NY Slip Op 51200U (Civ Ct, Richmond County 2007); DaimlerChrysler Services North America, LLC v. Tammaro (14 Misc 3d 128A, 2006 NY Slip Op 52506U (App Term, 2d Dept 2006); Citibank N.A. v. Suen, 11 Misc 3d 126A, 2005 NY Slip Op 52262U (App Term, 2d Dept 2005)).

In the instant case, due to the lack of the certificate of conformity, the affidavit is in effect unsworn. As a result, plaintiff's failure to submit a certificate of conformity renders the affidavit insufficient. (See, Citibank, 2005 NY Slip Op 52262U). Without a sworn affidavit, the plaintiff's motion papers are devoid of the sworn factual proof necessary to sustain a motion for summary judgment under CPLR 3212(b).

Finally, having denied summary judgment on the certificate of conformity issue, the court need not reach other issues raised by the defendant in his papers submitted in opposition. Accordingly, plaintiff's motion for summary judgment is hereby denied without costs.

Auburn, New York

Dated this 13th day of November 2007

___________________________________

Hon. Michael F. McKeon

City Court Judge