Opinion
March 15, 2000.
Ross Suchoff Taroff Egert Hankin P.C., New York City, for plaintiff.
Plaintiff moves for a default judgment based on an affidavit executed in Texas, but not accompanied by a certificate authenticating the authority of the person administering the oath, as required by CPLR § 2309(c). While the courts previously have denied such motions based on the failure to authenticate the authority of a notary public outside New York, this court, on defendants' default, grants plaintiff's motion. CPLR § 3215. When the person administering the oath for an out-of-state affidavit is a notary, the affidavit does not require a certificate authenticating the notary's authority.
In requiring authentication of an out-of-state oath giver's power, 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 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.
Section 2309(c) thus adopts the requirements of N.Y. Real Prop. Law (RPL) §§ 299 and 311, which govern acknowledgment of deeds and authentication of acknowledgments outside the state.
Real Property Law § 299(3) designates a notary public as eligible to acknowledge a deed outside New York. Section 311(4) requires only that acknowledgments pursuant to § 299(5), "by an officer or person not elsewhere . . . specifically designated to take acknowledgments" in § 299, be accompanied by a certificate of authentication. Section 311(5) reinforces the limits of the requirement for a certificate of authentication. "[No certificate of authentication shall be required to entitle a conveyance to be read in evidence or recorded in this state when acknowledged or proved before any officer designated in [§ 2991 to take such acknowledgment or proof." RPL § 311(5).
Since RPL § 299(3) designates a notary public as eligible to acknowledge a deed outside the state, under RPL § 311(4) and (5), a separate authentication is not required for a notary public. Similarly, under CPLR § 2303(c), acknowledgments by out-of-state notaries are permissible without separate authentication. Plaintiff's affidavit, signed and sworn to before a notary in Texas, does not require an accompanying certificate authenticating the notary's authority to administer oaths.
Based on plaintiff's affidavit, the court grants plaintiff's motion for a default judgment and awards judgment in favor of plaintiff and against defendant for $1,575.00, with interest from January 29, 1998.