Opinion
02-03-2015
Proceeding for the Appointment of a GUARDIAN OF S.A.B.G., a Minor.
Petitioner is represented by Laura Demastus, Esq. Donna McCabe, Esq. was appointed as attorney for the child.
Petitioner is represented by Laura Demastus, Esq.
Donna McCabe, Esq. was appointed as attorney for the child.
CONRAD D. SINGER, J. The petitioner herein, J.S.G., petitioned this Court on August 26, 2014 to be appointed guardian of the subject child, S.A.B.G. On November 7, 2014, the petitioner filed a copy of the subject child's parents' death certificates with a certificate of translation. On November 12, 2014, this Court adjourned the matter and directed counsel to submit an appropriate translation. Now the petitioner moves this Court, by and through his attorney, for the Court to accept the translation of the foreign documents, as well as to accept the documents themselves for the Court's consideration and record. Counsel for the petitioner submitted a Memorandum of Law in Support of the Motion to Accept Foreign Language Documents Pursuant to Civil Procedure Law and Rules (hereinafter " CPLR ") § 2101(b).
ARGUMENT
Counsel argues that the foreign documents submitted to the Court conformed with the requirements set forth in the CPLR § 2101(b) in that the foreign documents were accompanied by an English translation and the translator included an affidavit that stated her qualifications and also stated that the translation was accurate (Memorandum of Law In Support of Motion to Accept Foreign Language Documents Translated Pursuant to CPLR 2101(b), Argument A, January 20, 2015). Counsel believes that the CPLR does not define the term "qualifications" and that the translator's statement that she is "proficient in both English and Spanish" is sufficient for her to translate the foreign documents, which were written in the Spanish language (id. , at Argument B ).
RELEVANT STATUTE
CPLR § 2101(b). Form of Papers. Language. "Each paper served or filed shall be in the English language which, where practicable, shall be of ordinary usage. Where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate." DISCUSSION
The issue before the Court is whether the foreign documents, annexed translations and translation certification submitted to this Court are sufficient and whether the Court's directive to provide a suitable translation was contrary to controlling law.
It is well settled law that a foreign document filed with the court must be accompanied by an English translation of same and by an affidavit by the translator stating their qualifications and that the translation is accurate (see CPLR § 2101(b) ; see also National Puerto Rican Day Parade, Inc. v. Casa Publications, Inc., 79 A.D.3d 592, 593, 914 N.Y.S.2d 120, 122 [1st Dept.2010] ). The Court acknowledges that the statute does not require the translator to list what was translated, does not require the translator to provide a complete translation, nor to provide an itemized list of their qualifications (see National Puerto Rican Day Parade, Inc., supra at 593–94, 914 N.Y.S.2d 120 ). However, in the case at bar, the statement provided by the translator that she is "proficient in both English and Spanish" is ambiguous, self-serving and insufficient to illustrate her qualifications. The translator failed to state her professional qualifications which render her suitable to translate the documents. The translator's statement that she is proficient can draw a multitude of inferences and the Court will not conjecture on her level of proficiency or how such her alleged proficiency was earned (see National Puerto Rican Day Parade, Inc., supra at 594, 914 N.Y.S.2d 120, distinguishing Martinez v. 123–16 Liberty Avenue Realty Corp., 47 A.D.3d 901, 850 N.Y.S.2d 201 [2d Dept.2008], wherein the court did not accept a translation since one of the "documents was translated by a party's family member, not a professional translator").
Moreover, pursuant to the statute, the translation must be accompanied by an affidavit stating the translator's qualifications and that the translation is accurate. An affidavit is a statement of facts in writing signed and sworn to before an authorized officer (see Estate of Giannopoulos, 89 Misc.2d 961 at 963, 392 N.Y.S.2d 828 at 830 [Sur.Ct., Queens Cty.1977] ). An affidavit should ordinarily begin with its venue (state, county and city in which it is made) and contains an opening statement such as, "Mary Jones, being duly sworn, deposes and says ...," followed by a recitation of the facts and the signature of the affiant and notary at the bottom of the statement (see Siegel–NYPRAC § 205, Affidavits; see also GBI Acupunture, P.C. v.
Esurance Ins. Co., 38 Misc.3d 1208(A), 4, 967 N.Y.S.2d 867 [Civ.Ct., New York Cty.2012] ). We do not have that here. The certificate of translation merely states: "I, [translator], being proficient in both the English and Spanish language, do hereby certify that the above represents a true and complete English translation from the original document written in Spanish" (Certified Translation, Registry of the Family State Republic of El Salvador Death Certificate, S.E.G.R. and Certified Translation, Registry of the Republic of El Salvador Death Certificate, J.E.B.C. ). The certificate does not contain any reference to venue nor does it state that the statement is sworn to and made under the penalty of perjury. While CPLR § 3026. "Construction." anticipated such defects in documents and instruments and instructs that such defects should be ignored if the substantial right of a party is not prejudiced, this Court cannot ignore this structural defect of the affidavit coupled with the ambiguity of the translator's qualifications; accordingly it is hereby:
ORDERED, that counsel for the petitioner shall submit certified death certificates for S.E.G.R. and J.E.B.C. accompanied by an English language translation and an affidavit of the translator for same in compliance with CPLR § 2101(b) ; it is further.
ORDERED, that the parties shall appear before this Court on March xx, 2015 at 9:00 a.m. for further deliberations; it is further.
ORDERED, that all other applications not addressed herein are deemed denied. This constitutes the Decision and Order of the Court.