Key Takeaway
Bacon & Seiler allowed identical evidence corrected into affidavit form in reply, but reinstated the claim against the other defendant for insufficient proof.
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Last reviewed: September 2026
Bacon & Seiler allowed Sheila Maestri to correct her declaration’s form in reply. John Maestri’s dismissal was reversed: the moving papers still failed to establish the facts needed for his defense.
Legal Update (September 2026): Bacon & Seiler applied the 2020 rules; current CPLR 2106 now permits any person to use qualifying perjury affirmations for covered statements—see the 2024 and 2025 amendment guide.
The correction in reply
In Bacon & Seiler Constructors v Solvay Iron Works, 2020 NY Slip Op 04020, the Fourth Department allowed Sheila Maestri’s defective declaration to be resubmitted as an affidavit in reply. The evidence was identical; its form changed. The court upheld that exercise of discretion under CPLR 2001.
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The underlying dispute concerned alleged fiduciary responsibility for retirement-plan contributions and an effort to pierce the corporate veil. It was not simply a ruling that every construction defendant can repair a motion in reply.
Why the result differed for John Maestri
The court reversed dismissal as to John. The attorney’s affirmation could introduce exhibits, but its assertions did not establish John’s lack of involvement. The deposition excerpts were equivocal, and Sheila’s affidavit did not address his role. Correct execution of her statement did not prove facts about him.
CPLR 2001 allows qualifying defects to be corrected or disregarded. The case illustrates why identifying a technical defect does not end the summary judgment analysis.
What to check now
The case applied the rules in 2020. Current CPLR 2106 permits qualifying signed perjury affirmations by any person for covered statements, subject to its form and exceptions. A notarized affidavit is not invariably required today.
Compare the original and corrected documents, identify any new assertions, and explain why the proposed correction is appropriate. Calling a submission a declaration, affidavit or affirmation does not establish its contents or an automatic right to supplement the record.
No separate personal account was identified in this post; the case summary above does not invent one.
Connect to the Encyclopedia
Start with the CPLR 2001 mistakes and irregularities hub.
- Buist: proof filed in the wrong office
- Citimortgage: missing attachment, separate merits
- Ortho-Med: why the reply issue was not reached
- Mount Sinai: substantive judgment changes
- Current CPLR 2106: affirmation form, amendments and exceptions
For review of a particular motion or no-fault defense record, contact the office.
Legal Context
Why This Matters for Your Case
New York's no-fault insurance system, established under Insurance Law Article 51, is one of the most complex insurance frameworks in the country. Every motorist must carry Personal Injury Protection coverage that pays medical expenses and lost wages regardless of fault, up to $50,000 per person.
But insurers routinely deny valid claims using peer reviews, EUO scheduling tactics, fee schedule reductions, and coverage defenses. The Law Office of Jason Tenenbaum has handled over 100,000 no-fault cases since 2002 — from initial claim submissions through arbitration before the American Arbitration Association, trials in Civil Court and Supreme Court, and appeals to the Appellate Term and Appellate Division. Jason Tenenbaum is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
His 2,353+ published legal articles on no-fault practice are cited by attorneys throughout New York. Whether you are dealing with a medical necessity denial, an EUO no-show defense, a fee schedule dispute, or a coverage question, this article provides the kind of detailed case-law analysis that helps practitioners and claimants understand exactly where the law stands.
About This Topic
New York No-Fault Insurance Law
New York's no-fault insurance system requires every driver to carry Personal Injury Protection (PIP) coverage that pays medical expenses and lost wages regardless of who caused the accident. But insurers routinely deny, delay, and underpay valid claims — using peer reviews, IME no-shows, and fee schedule defenses to avoid paying providers and injured claimants. Attorney Jason Tenenbaum has litigated thousands of no-fault arbitrations and court cases since 2002.
271 published articles in No-Fault
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
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