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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.

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).

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