On September 15, 2025, Justice Boddie of the Kings County Commercial Division issued a decision in Sky Delray, LLC v. Kirzner, 2025 NY Slip Op. 51453(U), denying summary judgment on a promissory note for failure to authenticate the note, explaining:
[A]t the core of Plaintiff’s motion lies the notion that Plaintiff has duly authenticated the Promissory Note, the instrument on which its motion turns. Plaintiff properly authenticated Defendants’ signatures featured in the Promissory Note as follows in Plaintiff’s Manager’s affidavit: “I am familiar with the defendants’ signatures, and I recognize each signature as that of each defendant.” It is indeed well settled that a witness can authenticate a signature of a person he or she knows.
However, an analysis of Plaintiff’s moving papers reveals that, beyond merely authenticating Defendants’ signatures in the Promissory Note, Plaintiff did not endeavor to authenticate the Promissory Note, the very instrument at the heart of its summary judgment motion. Notably absent from Plaintiff’s motion is any assertion that the Promissory Note annexed as exhibit A to its motion constitutes a true and accurate copy of the Promissory Note entered into between the parties. To the contrary, a review of Plaintiff’s Manager’s affidavit, which affidavit is used by Plaintiff as a vehicle to purport to authenticate the Promissory Note, makes plain that Plaintiff has eschewed any attempt to aver that the Promissory Note annexed to the motion constitutes a true and accurate copy of the parties’ Promissory Note.
Plaintiff’s failure to adduce witness testimony to the effect that the Promissory Note accompanying its motion is a true and accurate copy of the parties’ Promissory Note is no trifling procedural oversight as signatures alone do not make an agreement. The central import of authenticating the actual Promissory Note, as distinguished from merely authenticating the signatures featured therein, accounts for the Appellate Division, Second Department’s drawing as follows a line of demarcation between signature and promissory note in a recent decision involving, as here, a plaintiff’s motion for summary judgment in lieu of complaint pursuant to CPLR 3213:
. . .
In short, in light of Plaintiff’s failure to authenticate the Promissory Note (as distinguished from the signatures set forth therein) Plaintiff’s motion for summary judgment in lieu of complaint, predicated on the Promissory Note, must be denied regardless of the sufficiency of Defendants’ opposition papers since Plaintiff failed to sustain its initial burden of demonstrating its entitlement to summary judgment. Indeed, insofar as summary judgment is the functional equivalent of trial, the Court is not free to dispense with the authentication requirement in the context of the present dispositive motion. As held by the Appellate Division, Second Department in a case where, as here, the movant purported to base its motion on an unauthenticated contract:
A private document offered to prove the existence of a valid contract cannot be admitted into evidence unless its authenticity and genuineness are first properly established. Contrary to the appellant’s contention, the Supreme Court did not err in requiring that the appellant’s motion be supported by legally competent evidence. Accordingly, the motion was properly denied.
(Internal quotations and citations omitted).