In this mortgage foreclosure action, the court signed an Order of Reference appointing an attorney to be the referee charged with the duty to compute the amounts due to the bank under the mortgage and to determine whether the property could be sold as one parcel of real property at auction.
In accordance with the Order, the plaintiff-mortgagee served the Proposed Referee’s Report of Amounts Due and Referee’s Oath together with Notice of Computation of Amounts Due upon all defendants, including the property owner-mortgagor. In response, the defendant-mortgagor timely served his Objections to the Notice of Computation and requested that the Referee hold a hearing.
Cross-Motion to Disregard Referee’s Affirmation
The Referee executed his Oath and Report of Computation, fixing the amount due to plaintiff at $777,836.10 as of July 8, 2025, and reporting that the mortgaged premises should be sold in one parcel. The Referee’s Oath recited that he would faithfully and fairly determine the questions referred to him and make a just and true report; it was subscribed in the form of an affirmation under CPLR 2106, and was not administered by, or acknowledged before, a notary or other officer. Nor did it appear to acknowledge defendant’s objections.
The defendant-property owner, through his attorney, Richard A. Klass, Esq., Your Court Street Lawyer, filed a cross-motion to reject the Referee’s Oath and Report of Computation because the Referee’s Oath was executed in the form of an affirmation rather than sworn and acknowledged as required by CPLR 4315; and that the Referee disregarded the defendant’s timely Objections and failed to hold a hearing.
In opposition to the cross-motion and in further support of the motion, plaintiff contended the cross-motion was untimely, and that the Referee was not required to hold a hearing because the Objections did not present competing evidence or a counter-computation of the amount due. Plaintiff’s papers did not address the contention that the Referee’s Oath fails to satisfy CPLR 4315.
Referee Must Take An Oath
CPLR 4315 provides as follows:
A referee, other than a judicial hearing officer or a special referee, before entering upon his duties, shall be sworn faithfully and fairly to do such acts and make such determination and report as the order requires. The oath may be administered by any person authorized to take acknowledgments of deeds by the real property law. The oath may be waived upon consent of all parties.
CPLR 2309 lists who is authorized to administer the Referee’s oath. [Footnote 1]
The taking of the oath in the manner the statute prescribes is a precondition to the referee’s authority: by the plain terms of CPLR 4315, the referee must “be sworn” “before entering upon his duties” and such oath must be “acknowledged.”
Here, the Referee was not sworn in the manner CPLR 4315 requires. In place of an oath administered by a person authorized to administer oaths, the Referee subscribed an affirmation in the form prescribed by CPLR 2106—which was not administered by, or acknowledged before, any officer. The cross-motion squarely presented the question whether an affirmation under CPLR 2106 may stand in for the oath that CPLR 4315 requires of a referee. Here, the Referee signed an affirmation for his Oath, which is not acknowledged. This is unacceptable and is specifically one of the categories for which an affirmation may NOT be used under CPLR 2106 as a substitute for a notarized document. [Footnote 2] It may not.
CPLR 2106 does not apply to a referee’s oath. CPLR 2106(a) permits an affirmation “in lieu of and with the same force and effect as an affidavit, a certificate, a response to a notice to admit, an answer to interrogatories, a verification of a pleading, a bill of particulars and any other sworn statement”. By its terms, the rule supplies a substitute for a sworn statement that asserts the truth of facts—an affidavit, a verification of a pleading, and like instruments. It does not purport to reach every oath.
CPLR 4315 expressly provides that the “oath may be administered by any person authorized to take acknowledgments of deeds by the real property law.”
“Three provisions of the Real Property Law must be read together to discern the requisites of a proper acknowledgment. Real Property Law § 292 requires that the party signing the document orally acknowledge to the notary public or other officer that he or she in fact signed the document. Real Property Law § 303 precludes an acknowledgment from being taken by a notary or other officer “unless he [or she] knows or has satisfactory evidence that the person making it is the person described in and who executed such instrument.” And Real Property Law § 306 compels the notary or other officer to execute “a certificate … stating all the matters required to be done, known, or proved” and to endorse or attach that certificate to the document. The purpose of the certificate of acknowledgment is to establish that these requirements have been satisfied: (1) that the signer made the oral declaration compelled by Real Property Law § 292; and (2) that the notary or other official either actually knew the identity of the signer or secured “satisfactory evidence” of identity ensuring that the signer was the person described in the document … New York courts have long held that an acknowledgment that fails to include a certification to this effect is defective … ” Galetta v Galetta, 21 NY3d 186, 191-194 [2013].
There was no dispute that the Referee’s oath was not acknowledged. A referee appointed under an order of reference is an officer of the court, charged with performing a delegated, quasi-judicial function. The oath the referee must take “before entering upon his duties”—to do “faithfully and fairly’” the acts and make the determination and report the order requires—is the oath by which the referee qualifies to undertake that office. It is not a statement of presently existing facts affirmed to be true; it is a prospective undertaking to discharge an official duty faithfully. An affirmation under CPLR 2106—which is, by design, a substitute for a sworn statement of fact—is therefore neither textually nor structurally suited to serve as a referee’s qualifying oath. CPLR 4315 reinforces the distinction: it directs that the referee’s oath “may be administered by” specified persons, contemplating an oath that is administered, not one that the referee subscribes to himself. A self-executed CPLR 2106 affirmation is not an administered oath, and it does not satisfy CPLR 4315.
Judge Invalidates Referee’s Oath and Report
As the judge observed, although the plaintiff’s reply addressed other aspects of defendant’s cross-motion, the plaintiff did not argue that an affirmation under CPLR 2106 satisfied CPLR 4315, and did not otherwise refute the defendant’s contention that the Referee’s Oath was invalid. Defendant’s contention thus stood unrebutted—and the plaintiff effectively conceded the issue as a matter of law. See Wilmington Sav. Fund Socy., FSB v Cuong Vi Cao, 242 AD3d 1045 [2d Dept 2025]; McNamee Const. Corp. v City of New Rochelle, 29 AD3d 544 [2d Dept 2006]; See also Kuehne & Nagel, Inc. v Baiden, 36 NY2d 539 [1975]; Firth v State, 287 AD2d 771 [3d Dept 2001], affd, 98 NY2d 365 [2002].
Since the Referee was not sworn as CPLR 4315 required before entering upon his duties, and the oath was not waived upon the consent of all parties, the Referee’s Oath of Computation was deemed invalid, and the Computation, made before the Referee was duly sworn, could not be confirmed. Defendant’s cross-motion to reject the Referee’s Oath and Report of Computation was granted, and Plaintiff’s motion to confirm the Report and for a Judgment of Foreclosure and Sale was denied.
Further, the judge directed that the matter be referred back to the Referee again to compute the amount due to the plaintiff and to examine whether the mortgaged property may be sold in parcels; provided, however, that before entering upon his duties, the Referee must take and subscribe an oath in compliance with CPLR 4315, duly administered by a person authorized to administer oaths, and further, consider the defendant’s Objections to the plaintiff’s computations and afford the defendant an opportunity to be heard.
Footnotes
[1]
CPLR 2309(a) Persons authorized to administer. Unless otherwise provided, an oath or affirmation may be administered by any person authorized to take acknowledgments of deeds by the real property law. Any person authorized by the laws of this state to receive evidence may administer an oath or affirmation for that purpose. An oath to a juror or jurors may be administered by a clerk of court and his deputies. This section shall not apply to an oath of office.
[2]
Rule 2106. Affirmation of truth of statement. (a) The statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, other than in a deposition, or an oath of office, or an oath required to be taken before a specified person other than a notary, may be used in an action in New York in lieu of and with the same force and effect as an affidavit, a certificate, a response to a notice to admit, an answer to interrogatories, a verification of a pleading, a bill of particulars and any other sworn statement. Such affirmation shall be in substantially the following form:
I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, except as to matters alleged on information and belief and as to those matters I believe it to be true, and I understand that this document may be filed in an action or proceeding in a court of law.
(Signature)
Richard A. Klass, Esq.
Your Court Street Lawyer
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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.com with any questions.
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