When Peter Falk passed away last year, we lost one of the great television actors of our time. Falk played the role of Lieutenant Columbo, an unkempt homicide detective in a shabby raincoat who drove around in a dilapidated Peugeot convertible. Columbo often aired on Sunday night, and it was that type of rare show that could engage both parents and teenagers for a brief respite together before work and school began on Monday morning.

Like many effective lawyers, Columbo had the uncanny ability to conduct himself in a manner that lulled his opponents into underestimating his abilities. He plodded through life, and his questioning often rambled on in an absentminded way. When it looked like he would finally relent and leave the suspect be, he often returned to the interrogation with a more pointed question. While exiting from a door, he would turn and interject his trademark line: “Just one more thing.” That last point or question often exposed the criminal.

Supplemental Submissions

We are reminded of Lt. Columbo as we observe what has become an all too common practice on motions for summary judgment. Parties serve papers pursuant to the time frames in CPLR 2214 and furnish the motion, answering papers, and reply to the court. Then there is “one more thing”: a supplemental submission. This type of submission, not authorized by the CPLR, is often designed to cure a deficiency in one side’s papers after the time limits in CPLR 2214 have expired.

In Ostrov v. Rozbruch, 91 AD3d 147, 936 N.Y.S.2d 31 (1st Dept. 2012), the Appellate Division, First Department, poured cold water on this practice. It held that on a motion for summary judgment, supplemental affirmations should be sparingly used to clarify limited issues, and not relied upon as a matter of course to correct deficiencies in a party’s motion papers. The court reversed a decision of Supreme Court, which permitted multiple supplemental submissions, and granted summary judgment to defendant dismissing this medical malpractice action.

The importance of the Ostrov decision in the realm of motion practice cannot be overstated, and is highlighted by the fact that it has already been cited in 15 reported decisions in the eight-month period since it was handed down. In many of these decisions, a trial court refused to consider supplemental submissions not authorized by the CPLR.

Procedure in ‘Ostrov’

In Ostrov, plaintiff commenced a medical malpractice action against defendant doctor alleging, among other things, that the doctor improperly performed surgery on her left leg. Defendant moved for summary judgment arguing that plaintiff was an appropriate candidate for knee surgery and that the surgery was properly performed. In support of the motion, defendant submitted the affidavits of six experts. In opposition, plaintiff argued that questions of fact existed concerning whether defendant departed from good and accepted medical practice in recommending and performing the left knee replacement. In support of her arguments, plaintiff submitted the affidavit of an expert orthopedic surgeon who opined that the subject surgery was contraindicated.

After oral argument, the trial court held defendant doctor’s motion in abeyance to allow both sides to submit additional proof. The court concluded that defendant doctor made a prima facie showing that he had not departed from accepted care in his treatment of plaintiff, which shifted the burden to plaintiff to demonstrate the existence of material issues of fact. While plaintiff’s expert had not taken issue with the manner in which the surgery was performed, he opined that defendant doctor had deviated from accepted medical care in performing the surgery because it was contraindicated.

Defendant pointed out that he was “never explicitly on notice” of plaintiff’s new claim that the surgery was contraindicated because plaintiff never properly pleaded such an allegation in either her complaint or bill of particulars. The trial court observed that this contention had “some merit” and, furthermore, that it “could be argued” that plaintiff’s lack of proof on the issue of whether the surgery was properly performed warranted granting defendant’s motion. Nonetheless, the court concluded that the “better practice” was to direct both sides to submit additional proof on whether the surgery was contraindicated.

The parties submitted additional proof, including affirmations from four experts who had not submitted affirmations with the original summary judgment papers. After a second round of oral argument, the court granted defendant’s motion in part, dismissing all of plaintiff’s causes of action except for the claim that the knee replacement was contraindicated.

First Department

On appeal, the First Department reversed and dismissed the complaint in its entirety, using the occasion to highlight appropriate procedures on summary judgment motions. The court noted that since

summary judgment is the equivalent of a trial, it has been a cornerstone of New York jurisprudence that the proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law…. Once this requirement is met, the burden then shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial.

The Supreme Court specifically found that defendant met his burden of establishing that there were no material issues of fact in dispute, shifting the burden to plaintiff to properly establish the existence of a material issue of fact. Although it expressly recognized that plaintiff’s initial opposition papers did not meet that burden, the Supreme Court did not grant the motion.

The First Department observed that the motion court, “apparently relying on some of our prior decisions permitting additional submissions under limited circumstances, opted to permit the parties to submit additional evidence” on the issue of whether the surgery was contraindicated. The court emphasized that this “expanded the scope of plaintiff’s theory of medical malpractice beyond what was encompassed in the complaint and bill of particulars” because the contention was raised for the first time in plaintiff’s original opposition papers to the motion for summary judgment.

Limitations

The Appellate Division concluded that the “resulting submissions went well beyond the limitations our prior decisions envisioned.” The court conceded that some of its recent appellate decisions “may have created the erroneous impression that supplemental submissions could be routinely utilized in summary judgment motions without regard to the scope of such submissions or the time limitations imposed by the CPLR.” The appellate court chose this opportunity to review the holdings in three of its recent decisions and highlight that while “supplemental submissions may be appropriate in particular cases, they should be sparingly used and then only for a limited purpose.”

The First Department emphasized that its prior decisions permitted supplemental submissions that “were limited in scope and temporal duration” and that there was “no indication that the supplemental submissions [in its prior decisions] included material from additional experts in other medical disciplines or information not originally referenced in plaintiff’s initial opposition papers.”

In the Ostrov matter, however, the supplemental expert affirmations were authored by experts from medical disciplines different than those submitted with the original motion papers and expanded the scope of plaintiff’s theory of medical malpractice beyond what was raised in the complaint and bill of particulars. Relying on prior Appellate Division case law, the First Department pronounced that a “court should not consider the merits of a new theory of recovery, raised for the first time in opposition to a motion for summary judgment, that was not pleaded in the complaint.” The unanimous panel ruled that because the Supreme Court found plaintiff’s opposition papers insufficient, but for this new theory of recovery, defendant’s motion for summary judgment should have been granted.

Difficulties Created

The court catalogued the difficulties created by the “open-ended supplemental submissions” in this matter. The summary judgment process took more than 17 months from the time of the original filing of defendant’s motion for summary judgment until the final order of the court deciding it, hardly a streamlined procedure. Furthermore, “[w]hat started out as a limited inquiry into the basis of plaintiff’s expert’s conclusion that the surgery in question was contraindicated took on a life of its own, with the parties submitting affirmations from additional experts in a variety of medical disciplines.”

The court also remarked on another problem arising on summary judgment motions, which involves the submission of additional proof at oral argument. At the end of the second oral argument on the summary judgment motion in Ostrov, plaintiff’s counsel handed up to the court a medical article authored by three of the experts who penned defendant’s supplemental submissions in an attempt to impeach their opinions. The article “caught defendant unawares” as “none of the experts referenced this article in arriving at their opinions.” Despite defendant’s objections, the court received the article and relied on it in concluding that plaintiff had raised a material issue of fact warranting a trial. The First Department declared that this submission was “improper.”

In concluding, the Ostrov court emphasized that “motion practice in connection with summary judgment should be confined to the limits imposed by CPLR 2214(b).” The courts possess the necessary discretion to direct supplemental affirmations in appropriate circumstances, such as on discrete issues to clarify the grounds for an expert’s initial conclusion. Supplemental submissions on motions for summary judgment should, however, “be sparingly used to clarify limited issues, and should not be utilized as a matter of course to correct deficiencies in a party’s moving or answering papers.”

Recommendations

The decision in Ostrov highlights the importance of laying one’s proof bare in opposition to a motion or cross motion for summary judgment. The proof must be in admissible form and submitted in accordance with the time frames in CPLR 2214(b) and CPLR 2215. Too often lawyers delay in assembling proof sufficient to ward off summary judgment and, as in Ostrov, request that the court consider supplemental submissions outside the time periods that control summary judgment procedure. The First Department’s lengthy opinion, and the 15 cases citing to it, demonstrate that this is a risky practice.

Summary judgment motions, in effect, take a snapshot of the proof submitted by the parties as of the return date. A decision is then made based on that photograph. A snapshot of the proof ultimately submitted at trial may produce a significantly different picture because the parties have had more time to gather essential information and the level of preparation for trial is generally more intense than the effort generated on a motion for summary judgment.

Lawyers defending summary judgment motions must remember, however, that the picture that can be developed at trial is essentially irrelevant if the required proof is not timely submitted in opposition to the motion. The Ostrov decision, which resulted in the dismissal of a medical malpractice action after plaintiff went to great effort and expense to support an untimely supplemental submission, vividly makes the point.

If a party needs additional time to assemble proof, she should promptly ask the proponent of the summary judgment motion for an extension in a form sanctioned by CPLR 2104, which governs stipulations. See also 22 NYCRR 202.8 (e) (1) (governing stipulations of adjournment of the return date made by the parties). If the proponent of the motion will not consent, the party seeking the adjournment should submit the request in writing, upon notice to all parties, to the assigned judge as far in advance of the return date as possible. See 22 NYCRR 202.8 (e) (2). This is a far better course of action than seeking to fill in gaps in proof with supplemental submissions after the time periods in the CPLR have expired.

Patrick M. Connors is a professor of law at Albany Law School, where he teaches New York Practice and Professional Responsibility. He is the author of the McKinney’s Practice Commentaries for CPLR Article 31, Disclosure and is a member of the Office of Court Administration’s Advisory Committee on Civil Practice.