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gavelThere is something strange about New York’s “feigned issue of fact” rule. Under this common-law rule of civil practice, a sworn statement that is deemed by the court to be merely “feigned” will be ignored, or deemed inadmissible. The typical example is a witness who testifies at a deposition and then submits an affidavit, usually in opposition to a summary judgment motion. Where the affidavit directly contradicts the witness’ deposition testimony, the affidavit is merely “feigned” and is, therefore, disregarded.

Each of the four Appellate Divisions follows the rule (Telfeyan v. City of New York, 40 A.D.3d 372 (1st Dept. 2007); Capasso v. Capasso, 84 A.D.3d 997 (2d Dept. 2011); Sutin v. Pawlus, 105 A.D.3d 1293 (3d Dept. 2013); Schuster v. Dukarm, 38 A.D.3d 1358 (4th Dept. 2007)), which is deeply embedded in New York’s civil jurisprudence and dates back at least to the First Department’s 1993 decision in Kistoo v. City of New York, 195 A.D.2d 403 (1st Dept. 1993). A search of New York case law for the phrase “feigned issue of fact” on Google Scholar yields 365 results, and a search for “feigned” yields 1,690 results. Since those are only published decisions, it is safe to say that this rule is widespread in the New York civil system.

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