Elizabeth R.E. v. Doundley A.E.

Appellate Division of the Supreme Court of New York

Elizabeth R.E. v. Doundley A.E.

44 A.D.3d 332, 841 N.Y.S.2d 871

Appellate Division of the Supreme Court of the State of New York·Decided October 4, 2007·Published·Cited by 1 cases

Opinion

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.

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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.

Elizabeth R.E. v. Doundley A.E., 44 A.D.3d 332, 841 N.Y.S.2d 871 (N.Y. Ct. App. 2007).

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Opinion

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