Opinion
2008-236 Q C.
Decided November 21, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Edgar G. Walker J.), entered February 17, 2004. The order, insofar as appealed from, denied plaintiff Violet Francis' motion for summary judgment in lieu of complaint.
Order, insofar as appealed from, reversed without costs and plaintiff Violet Francis' motion for summary judgment in lieu of complaint granted.
PRESENT: WESTON PATTERSON, J.P., GOLIA and STEINHARDT, JJ.
In this action to recover on a promissory note, the court below denied the motion by plaintiff Violet Francis for summary judgment in lieu of complaint (CPLR 3213) on the ground that the affidavits submitted in support thereof, notarized in the State of Florida, were not accompanied by certificates of conformity (CPLR 2309 [c]). Where, as here, there was no specific objection to the omission of a certificate of conformity in the opposition papers to the motion, the defect should have been disregarded by the court below because the defect is not a fatal one, but a mere defect in form ( see CPLR 2001, 2101 [f]; Smith v Allstate Ins. Co. , 38 AD3d 522; Sparaco v Sparaco, 309 AD2d 1029; Matter of MBNA Am. Bank N.A. v Stehly , 19 Misc 3d 12 [App Term, 2d 11th Jud Dists 2008]).
In support of the motion for summary judgment in lieu of complaint, proof of the promissory note and of defendant's failure to make the payments provided for in the promissory note was submitted, thereby establishing the plaintiff-movant's prima facie entitlement to judgment as a matter of law ( see Forstadt v Allen , 16 Misc 3d 132 [A], 2007 NY Slip Op 51479[U] [App Term, 9th 10th Jud Dists 2007]). Even if it be assumed that defendant's allegations established a meritorious claim that he executed the promissory note through economic duress, he waived such claim of duress since he failed to promptly repudiate the promissory note and, instead, made payments due thereunder for a year ( see Bethlehem Steel Corp. v Solow, 63 AD2d 611, 612).
Accordingly, the order denying the motion for summary judgment in lieu of complaint is reversed and the motion granted.
Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.