Order, Supreme Court, New York County (Paul G. Feinman, J.), entered December 22, 2008, which granted plaintiff's motion for summary judgment in lieu of complaint and denied defendant's cross motion for summary judgment, unanimously affirmed, with costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Andrias, J.P., Friedman, Acosta, DeGrasse, RomÁn, JJ.
Plaintiff demonstrated it was a holder of the subject notes, and had a capacity to sue thereunder. Defendant failed to demonstrate a genuine defense to the notes. The notes were made payable to a Delaware corporation that later merged with another Delaware corporation, which in turn assigned to plaintiff its rights to the notes. The surviving corporation had the power to make that assignment (see Business Corporation Law § 906[b]; 8 Del Code Ann § 259[a]).
In its reply, plaintiff submitted a supplemental affidavit containing endorsements to the notes, which had inadvertently been omitted on the initial moving papers. The court properly considered this submission because defendant had made an issue of the omission in response to the motion (see Matter of Kennelly v Mobius Realty Holdings LLC, 33 AD3d 380, 382 ; Ryan Mgt. Corp. v Cataffo, 262 AD2d 628, 630 ).
There were no triable issues of fact precluding the grant of summary judgment. Even if there had been an issue as to whether defendant was given notice of the assignment of the notes, the controlling credit agreement provided that no failure by the lender to deliver a notice of assignment would affect defendant's obligations. Accordingly, any purported issue of fact regarding notice of the assignment is inconsequential. Nor is an indispensable party to the action absent.
Defendant has not preserved its argument that the foreign affidavits were invalid for lack of the certification required by CPLR 2309(c) and Real Property Law § 299-a. In any event, the courts are not rigid about this requirement. As long as the oath is duly given, authentication of the oathgiver's authority can be secured later, and given nunc pro tunc effect if necessary (see Siegel, Practice Commentary, McKinney's Cons Laws of NY, CPLR 2309:3). The absence of such a certificate is a mere irregularity, and not a fatal defect (see Smith v Allstate Ins. Co., 38 AD3d 522 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
© 1992-2009 VersusLaw ...