Feigned Issues of Fact: When Conflicting Statements Cannot Defeat Summary Judgment in New York

Understanding “Feigned Issues of Fact” in New York Litigation

In New York civil litigation, courts frequently encounter situations where parties attempt to create factual disputes by contradicting their own previous statements. This tactical maneuver—whether done through affidavits, depositions, or other sworn testimony—rarely succeeds in preventing summary judgment.

The legal principle at stake involves the concept of judicial admissions and the authenticity of factual disputes. When a party makes clear, unambiguous statements about material facts in affidavits or depositions, those statements typically bind them in subsequent proceedings. Courts recognize that allowing parties to freely contradict their earlier sworn testimony would undermine the integrity of the litigation process and create artificial factual disputes designed solely to avoid summary judgment.

This doctrine protects against manufactured controversies while ensuring that genuine factual disputes receive proper consideration. However, it’s worth noting that courts do sometimes permit clarification of previous statements under specific circumstances, particularly when the earlier statement was ambiguous or incomplete rather than directly contradictory.

The Decision: Mirjani v DeVito

Mirjani v DeVito, 2016 NY Slip Op 00448 (1st Dept. 2016)

“It is axiomatic that statements made by a party in an affidavit, a police report, or a deposition that are not denied by the party constitute an admission, and that later, conflicting statements containing a different version of the facts are insufficient to defeat summary judgment, as the later version presents only a feigned issue of fact”

How the Doctrine Fits the Summary Judgment Framework

The feigned-issue rule only makes sense against the backdrop of New York’s summary judgment standard. The party moving for summary judgment must first make a prima facie showing of entitlement to judgment as a matter of law through admissible evidence. Once that showing is made, the burden shifts to the opposing party to come forward with admissible evidence raising a genuine, triable issue of material fact. If the opposition succeeds, the motion is denied and the dispute goes to a factfinder.

Ordinarily, a court deciding a summary judgment motion does not weigh credibility — conflicting accounts from different witnesses are exactly the sort of dispute a trial exists to resolve. The feigned-issue doctrine is the carve-out. When the conflict is not between two witnesses but between a single party and that party’s own earlier account, and the new version surfaces for the first time in opposition to a dispositive motion, courts treat the contradiction as manufactured rather than genuine. There is no credibility contest to send to a jury; there is only a litigant trying to walk back an admission.

As the First Department’s formulation in Mirjani makes clear, the universe of binding prior statements is broad. Deposition testimony is the most common source, but undenied statements attributed to a party in a police report and assertions in the party’s own affidavits count as admissions too. The common thread is that the party had the opportunity to deny or correct the statement and did not.

What This Means in Practice

For defense counsel, the doctrine rewards disciplined record-building. Lock down the party’s account early — at the scene, in claim forms, and especially at deposition, where precise questioning forecloses later wiggle room. When opposition papers arrive, compare the affidavit line by line against the deposition transcript and any police report. A contradiction on a material fact is not merely impeachment material for trial; it is an argument that the opposition raises no issue of fact at all.

For plaintiffs and their counsel, the lesson is equally practical. Accuracy at every stage matters, because an offhand statement to a responding officer or a careless answer at a deposition can harden into a binding admission. If earlier testimony was genuinely ambiguous or incomplete, a clarifying affidavit may be permissible — New York courts have allowed a second affidavit to clarify in appropriate circumstances. But clarification and contradiction are different things, and courts police the line. An affidavit that supplies a new version of the facts, rather than context for the old one, will be disregarded as feigned.

Key Takeaway

The Mirjani decision reinforces that New York courts will not allow parties to avoid summary judgment by simply contradicting their previous sworn statements. Once a party makes clear admissions in official documents like affidavits, police reports, or depositions, attempting to create factual disputes through later inconsistent statements will be dismissed as presenting only “feigned issues of fact”—not genuine disputes worthy of trial.

Related Resources

• A formulation of a prima facie case
• A second affidavit to clarify is allowed
• An affidavit really is not an affidavit
• The firm’s Legal Encyclopedia
• Personal injury practice