Not necessarily inconsistent

Corrected Affidavits, Minor Errors, and the Business Records Foundation

In litigation — whether mortgage foreclosure, no-fault insurance, or any other area requiring documentary proof — practitioners routinely submit affidavits to establish the foundation for business records and demonstrate compliance with procedural requirements. When those affidavits contain minor errors, such as an incorrect date or a transposed number, opponents often seize on the mistake to argue that the affiant’s testimony is unreliable or “inconsistent.” The question then becomes: does a corrected affidavit constitute an impermissible inconsistency, or is it simply a permissible correction of an obvious error?

The First Department’s decision in Nationstar Mortgage LLC v Accardo provides important guidance. Though arising in the foreclosure context, the principles it articulates about corrected affidavits and the documentary evidence exception to the inconsistency argument are directly applicable to no-fault insurance litigation, where mailing affidavits, denial date references, and claim processing timelines are frequently the subject of typographical corrections. Practitioners who understand this ruling can confidently cure minor affidavit errors without fear that the correction itself will be weaponized against them.

Case Background

Nationstar Mortgage LLC v Accardo arose as a foreclosure action in Supreme Court, New York County, before Justice Carol R. Edmead. Nationstar moved to restore the action to active status, for summary judgment, and for the appointment of a referee to compute the amount due. The defendant, Agostino Accardo, opposed, arguing among other things that the plaintiff’s affidavit and attached documents were hearsay and that prior inconsistent statements by the plaintiff’s affiant undermined the motion. The Supreme Court granted Nationstar’s motion, and the Appellate Division, First Department, unanimously affirmed. The court found that the affiant had personally reviewed loan records maintained in the ordinary course of business and was personally familiar with the record-keeping practices, satisfying the business records foundation. As for the alleged inconsistencies, the court held that they did not raise a triable issue because they were “contradicted by documentary evidence.”

Jason Tenenbaum’s Analysis

Nationstar Mtge. LLC v Accardo, 2018 NY Slip Op 02276 (1st Dept. 2018)

Oh let us say you put the wrong denial date in your motion but correctly set forth the mailing procedure – placed in the bin, postaged, sent out that day or the next day and the affiant has personal knowledge of the mailing procedure. Bonus points if you say the affiant checked the accuracy of the addresses and (s)he ensured compliance with the procedures and did comply.

Now, you get called out because you made a typographical error. You fix the affidavit in Reply or make a new motion and someone accuses you of making inconsistent statements. Now what?

“In opposition, defendant failed to raise an issue of fact. Contrary to his contention, plaintiff’s affidavit and attached documents are not hearsay; the affiant said that he personally reviewed loan records kept in the ordinary course of business and that he was personally familiar with plaintiff’s record-keeping practices (see Bank of Am., N.A. v Brannon, 156 AD3d 1, 8 ). Inconsistent statements in a prior affidavit submitted by plaintiff do not suffice, because they are contradicted by documentary evidence (see Bank of N.Y. v 125-127 Allen St. Assoc., 59 AD3d 220 )“

Legal Significance

The Nationstar v Accardo decision establishes an important distinction between substantive inconsistencies that undermine an affiant’s credibility and minor discrepancies that are contradicted by the documentary record. In no-fault practice, this distinction matters enormously. Insurers frequently submit mailing affidavits from claims processors who handle thousands of files. An incorrect denial date, a wrong claim number digit, or a minor factual error in an initial affidavit does not automatically destroy the affiant’s credibility — particularly when the underlying business records themselves demonstrate what actually occurred.

The court’s reliance on Bank of N.Y. v 125-127 Allen St. Assoc. (59 AD3d 220 [1st Dept 2009]) confirms that documentary evidence can override alleged inconsistencies. This principle provides a crucial safety net in high-volume litigation where clerical mistakes are inevitable. Importantly, the ruling also reinforces the Bank of Am., N.A. v Brannon (156 AD3d 1 [1st Dept 2017]) standard for establishing a business records foundation: personal review of records maintained in the ordinary course of business combined with personal familiarity with record-keeping practices.

Practical Implications

For no-fault practitioners, this case offers a clear roadmap when facing allegations of affidavit inconsistency. First, ensure that the corrected affidavit is supported by documentary evidence — the actual denial letters, mailing logs, or claim records that demonstrate the true facts. Second, include language establishing that the affiant personally reviewed the records and has personal knowledge of the record-keeping procedures. Third, acknowledge the correction directly rather than ignoring the discrepancy; courts respond better to transparency than evasion. The documentary evidence must speak for itself, and when it does, a typographical error will not create a triable issue of fact.

Key Takeaway

A corrected affidavit containing minor errors does not automatically create an inconsistency sufficient to defeat summary judgment. When the documentary evidence contradicts the alleged inconsistency, the correction stands on firm ground. Practitioners should always ensure their business records foundation is airtight — personal knowledge, ordinary course of business, and documentary corroboration — so that inevitable clerical mistakes do not derail otherwise meritorious motions.

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