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.

Looking at just one typical example, in Burns v. Linden St. Realty, 2018 NY Slip Op 6876 (2d Dept. 2018), “[t]he plaintiff allegedly was injured when she lost her grip and fell from a fire escape ladder attached to an apartment building owned by the defendant.” The defendant moved for summary judgment, arguing that the plaintiff was unable to identify the cause of her fall (which by itself is grounds for dismissal relief). At her deposition, the plaintiff testified that “her hand was ‘thrown off’ the ladder, but she did not know why.” When it came time to oppose the motion for summary judgment, however, the plaintiff submitted an affidavit in which “she identified the cause of her fall as a ‘rusted metal shard’ from the fire escape ladder, which pierced her hand.” The lower court denied the defendant’s motion for summary judgment based on the affidavit, but the Appellate Division, applying the “feigned issue of fact” rule, deemed the affidavit to be inadmissible and, as a result, the defendant’s motion for summary judgment was granted. Note, the rule applies to plaintiffs and defendants alike; it has been cited as grounds to grant a motion for summary judgment in favor of a plaintiff where the defendant’s statement was merely “feigned.” See Buchinger v. Jazz Leasing, 95 A.D.3d 1053 (2d Dept. 2012) (and progeny).

In this context, the term “feigned” is really a euphemism for “false.” Implicitly, the rule accepts that the witness has made a material misrepresentation to the court, and punishes the affiant by treating the falsehood as a mere nullity. But does the rule treat the affiant with too much leniency, despite the fact that the litigant intentionally submitted a false, sworn statement to the court in an attempt to make the court rule in his or her favor?

Indeed, the “feigned issue of fact” rule directly contradicts New York’s perjury statutes as set forth in Article 10 of New York’s Penal Law. On their face, this presents an inherent conflict between the common-law rule and Article 10. Article 10 does not contain the word “feigned.” But its subsections list various forms of misrepresentation to a court, under oath, and their corresponding penalties as either misdemeanors or felonies. The definition section of Article 10 makes clear that its terms apply to testimony and affidavits alike (subsection 210.00).

Interestingly, subsection 210.20 specifically deals with perjury based upon statements “under oath which are inconsistent to the degree that one of them is necessarily false.” It states that “the indictment or information may set forth the two statements and, without designating either, charge that one of them is false and perjuriously made.” On its face, this subsection seemingly applies to any affidavit submitted to a court under the “feigned issue of fact” rule. Further, subsection 210.10, entitled “perjury in the second degree,” provides that a false statement in a written instrument, “for which an oath is required by law,” that is “made with intent to mislead a public servant in the performance of his official functions,” and is “material to the action, proceeding or matter involved,” is punishable as a class E felony. Subsection 210.10 seems to apply to every “feigned issue of fact” affidavit, the intent of which is certainly to persuade a judge, who is acting “in the performance of his official functions,” to rule a certain way in the case before him or her.

It is difficult to reconcile, or harmonize, the Penal Code’s treatment of these materially false sworn statements to a court as serious crimes, in contrast with the common law rule wherein they are given a pass and merely disregarded as “feigned.” One could certainly argue that the role of the civil court is only to decide the issue before it, rather than get involved with perjury prosecutions. One could also argue that the “feigned” statements have not necessarily been proven to be false in accordance with the stringent standards for criminal prosecutions, proof beyond a reasonable doubt. And yet, it is hard to understand how one of two sworn statements could be true even though each is irreconcilably inconsistent with the other. Perhaps the affiant merely did not remember correctly, or remembered the facts better at the time of the deposition as compared to the moment when they signed the affidavit. But the “feigned issue of fact” rule recognizes otherwise, that the purpose of the affidavit was to induce the court to rule a certain way and that the statements were intentionally “feigned.” This is shown by the dictionary definition of the word “feign” (“simulated or pretended; insincere”) that it is an intentional act. The rule itself, by its plain dictionary definition, recognizes that an intentional act is in play. Moreover, we must remember that in the context of civil lawsuits, someone offering a “feigned” affidavit always has a strong financial incentive to lie. In the Burns example above, the plaintiff actually succeeded in obtaining a favorable ruling in the lower court. It was only due to the appeal that her case was dismissed despite the “feigned” affidavit. Conversely, a defendant may have a strong financial incentive to lie in an affidavit in order to avoid financial penalties associated with a lawsuit.

In short, the problem with the “feigned issue of fact” rule is that it encourages litigants to lie to the court. It creates a system wherein litigants face only a potential “upside” for lying and no “downside.” If the lie is successful, the court will rule in their favor. If the lie is unsuccessful, the worst case scenario is that the lie will be disregarded as merely “feigned.” Since there is only an upside and no downside, why not submit the affidavit and hope the court overlooks the issue? All rules are enforced only selectively.

Although it is certainly questionable whether civil courts should refer litigants to prosecutors whenever a “feigned issue of fact” is offered, the current approach creates a permissive atmosphere in which litigants are encouraged and incentivized to submit false affidavits to the court. This should not be. It perverts the court system and flies in the face of the Penal Law. The proof of this permissive atmosphere is in the simple fact that a search of New York case law for the phrase “feigned” yields 1,690 hits. Perhaps it is time for the legislature to step in and formulate a disincentive for these types of statements. Otherwise, the public’s trust in the integrity of the judicial system could be—justifiably—curtailed.

Nicholas Hurzeler is a partner at Lewis Brisbois Bisgaard & Smith in New York and vice chair of its appellate practice. He spends a majority of his time briefing and arguing appeals in the First and Second Departments of New York’s Appellate Division.