MOCCIA v. CARRIER CAR RENT

The affidavit submitted by defendants of a nonparty witness to the accident giving rise to this action raises a triable issue of fact as to plaintiff's comparative negligence. Plaintiff, however, raised a timely objection to the form of this affidavit, asserting that it did not comply with CPLR 2309 (c) and challenging the authority of the notary ( cf. Sparaco v Sparaco, 309 AD2d 1029). Such a defect in the form of the affidavit can be corrected nunc pro tunc ( Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833; Raynor v Raynor, 279 App Div 671; Siegel, NY Prac § 388 [4th ed]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2309:3; see Sparaco, supra). Defendants' attorney has submitted the original of the out-of-state, nonparty witness affidavit submitted in opposition to the motion bearing a notary seal, together with the appropriate certification, and complying with the oath formalities of CPLR 2309 (c) ( cf. B.B.Y. Diamonds Corp. v Five Star Designs, 6 AD3d 263).