Appellate Term approves of the Court giving Defendant a second bite at the apple

Summary judgment practice in New York involves strict procedural and evidentiary requirements governing what materials parties may submit and when they may cure deficiencies. Under CPLR 3212, the movant bears the initial burden of establishing entitlement to judgment as a matter of law through admissible evidence. When movants submit defective affidavits, unsworn statements, or materials lacking proper foundation, courts must determine whether to grant opportunities to cure or instead deny the motion based on the deficient papers. This question becomes particularly acute when defendants discover deficiencies only after submitting motion papers and seek to supplement with additional affidavits.

The general rule prohibits parties from supplementing motion papers with new evidence absent court permission or specific procedural justification. Reply papers may clarify or respond to opposition arguments but cannot introduce wholly new evidence to cure initial deficiencies in the movant’s prima facie showing. However, courts possess inherent authority to request supplemental submissions when doing so serves judicial efficiency and the interests of justice. The tension between rigid enforcement of motion practice rules and flexible case management creates uncertainty about when courts should permit supplementation versus denying motions based on deficient initial submissions.

Case Background

Riu Chiropractic, P.C. v AutoOne Ins. Co., 2010 NY Slip Op 50653(U)(App. Term 2d Dept. 2010)

In this no-fault action, plaintiff medical provider sued defendant insurer for payment of services rendered. Defendant cross-moved for summary judgment, submitting an affidavit from its litigation specialist establishing that Independent Medical Examination scheduling letters were timely sent pursuant to defendant’s standard office practice. However, defendant’s initial motion papers apparently lacked a critical element: an affidavit from the examining physician stating that plaintiff’s assignor failed to appear for the scheduled IMEs.

Recognizing this deficiency, the Civil Court instructed defendant to submit a supplemental affirmation from its examining physician. Defendant complied, and the physician stated that plaintiff’s assignor had failed to appear for scheduled IMEs. Based on the complete record including this supplemental submission, the trial court denied plaintiff’s motion for summary judgment and granted defendant’s cross-motion dismissing the complaint. Plaintiff appealed, arguing that defendant should not have received a “second bite at the apple” to cure deficient motion papers through supplemental submissions.

Court’s Analysis

Riu Chiropractic, P.C. v AutoOne Ins. Co., 2010 NY Slip Op 50653(U)(App. Term 2d Dept. 2010)

“In opposition to plaintiff’s motion for summary judgment and in support of its cross motion for summary judgment, defendant submitted an affidavit by its litigation specialist which established that the letters scheduling the IMEs had been timely sent pursuant to defendant’s standard office practice or procedure designed to ensure that such items were properly addressed and mailed (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 ). Thereafter, defendant submitted a supplemental affirmation, pursuant to the instructions of the Civil Court, from its examining physician. The physician stated therein that plaintiff’s assignor had failed to appear for scheduled IMEs. As a result, defendant established its prima facie case. Accordingly, the judgment is reversed, the order entered February 3, 2009 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the [*2]complaint is granted.”

What would happen if instead of getting an explicit instruction to cure the papers, the defendant placed this affidavit in a reply affirmation, which the plaintiff did not have a chance to comment upon?

Legal Significance

The Appellate Term’s decision in Riu Chiropractic represents a pragmatic approach to motion practice that prioritizes substantive justice over rigid procedural formalism. By approving the trial court’s instruction permitting supplemental submissions, the Appellate Term recognized that courts possess discretion to request additional materials when doing so clarifies issues and promotes efficient case resolution. This flexibility serves judicial economy by avoiding the waste of denying motions on technical grounds when simple supplementation can complete the evidentiary record.

However, the decision’s reliance on the trial court’s explicit instruction distinguishes it from situations where movants unilaterally supplement deficient papers through reply submissions. Jason’s prescient question highlights the critical procedural distinction: when courts affirmatively invite supplementation, they provide opposing parties notice and opportunity to respond. Unilateral supplementation through reply papers denies adversaries this opportunity, potentially violating due process and fairness principles. The decision thus implicitly endorses court-directed supplementation while leaving open questions about self-initiated curing of deficiencies.

Practical Implications

For defense counsel in no-fault litigation, Riu Chiropractic suggests that trial courts may exercise discretion to permit supplementation of deficient summary judgment papers when the deficiency appears curable through additional affidavits. When opposing summary judgment motions that lack critical evidentiary elements, defense counsel might consider requesting that courts permit supplementation rather than simply denying the motion. This approach may prove more effective than outright denial, which often results in renewed motions containing the previously missing evidence.

Plaintiff’s counsel should remain vigilant about procedural fairness when courts permit supplementation. If trial courts instruct defendants to submit additional materials, plaintiff’s counsel should request adequate time to review and respond to those submissions. Courts should not render decisions based on supplemental materials without affording adversaries opportunity to address them. When defendants attempt unilateral supplementation through reply papers without court instruction, plaintiffs should object and cite the distinction between court-directed supplementation and self-initiated curing of deficient papers.

Key Takeaway

Trial courts possess discretion to instruct parties to supplement deficient summary judgment papers when doing so serves judicial efficiency and the interests of justice. However, this discretion should be exercised transparently, with opposing parties receiving notice and opportunity to respond to supplemental submissions. Court-directed supplementation differs fundamentally from unilateral attempts to cure deficiencies through reply papers, which deny adversaries fair opportunity to address new evidence. Practitioners should recognize the distinction and either seek court permission for supplementation or object to unauthorized supplemental submissions lacking procedural foundation.

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• CPLR 3212(f) discovery limitations in summary judgment motions
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• Documentary evidence limitations under CPLR 3211(a)(1) motions
• Appeal rights for previously unappealed summary judgment motions
• New York No-Fault Insurance Law