Court finds lack of Certificate of Conformity an Irregularity

In recent decision, Citimortgage, Inc. v. Zagoory,  Supreme Court, Appellate Division, Second Department, 2021 WL 4763029 (10/13/2021),  the Appellate Court addressed an appeal from an order deny defendant’s motion to vacate an order of May 8, 2013 for summary judgment and judgment of foreclosure and sale.  The defendants appealed the order based upon a mortgage assignment.  The assignment of the first mortgage was executed outside of the State of New York and was not accompanied by a certificate of conformity pursuant to Real Property Law Section 299-a.

The Court found that the out of state acknowledgment that accompanied the assignment of mortgage substantially complied in content with the template for the Certificate of Conformity under Real property Law Section 309-b.  Further, the Court indicated that even if assignment had not substantially conformed to the statutory template, “absence of a certificate of conformity is a mere irregularity, and not a fatal defect, which can be disregarded in the absence of a showing of actual prejudice”. (Capital One, N.A. v. Mc Cormack, 183 A.D.3d at 645, 121 N.Y.S.3d 627).

As such, the Supreme Court properly denied the appellant’s motion to vacate.