Monthly Archives: December 2011

Invalidity and inadmissibility of out-of-state documents and affidavits

You represent the plaintiff-assignee on motion for summary judgment  under Civil Practice Law and Rule 3212 in a commercial mortgage foreclosure action. Your “affirmation of regularity” is supported by a complaint verified in New Jersey.  The assignment was effected and acknowledged, in Pennsylvania, under a power of attorney notarized in California.  All documents – the power of attorney, the assignment of mortgage and the verification – were properly executed in the jurisdictions where they were signed.

So “all of your [predicate legal] ducks are lined up.”  No heavy lifting here. File the motion and “judgment day” is near. (Sorry for the mixed metaphors.)  But wait a minute!!  None of the documents signed outside the state contain the so-called “certificate of conformity” required by CPLR 2309(c) and Real Property Law § 299-a.  Was the assignment of the mortgage effective? And is your evidence in admissible form?

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Condominium Law “Game Changer”?


By: Victor M. Metsch and Michael P. Regan

While arguably lacking the devastating impact of “The Punch”* and the near-theological sports mystique of “The Immaculate Reception”**, the recently decided case of Board of Managers of the Marbury Club Condominium v. Marbury Corners, LLC, 28 Misc.3d 1240(A), 2010 WL 3730082, 2010 N.Y. Slip Op. 51650(U), (Sup. Ct. West. Co., 9/22/10, Comm. Div., Scheinkman, J.) may resonate in the condominium community as “The Shot Heard ‘Round the World”.***

Marbury Corners upsets the (erroneously) conventional wisdom about both the immutable significance of disclosures made in, and the Attorney General’s “approval” of, an offering plan, and the near sacred belief in the post-closing sanctity of sponsor-imposed provisions of the plan.

In Marbury Corners, several years after all the units had been sold, the Court upheld a challenge to a $2.2 million note given to the sponsor by the sponsor-controlled board before the plan became effective.  In a suit brought by the unit owner-elected board, the Court held that the note, even though disclosed, was not authorized by law. Continue reading