- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Smith v. Maines Paper & Food Service, Inc.
- Date
- June 3, 2026
- Slip Op. No.
- 2026 NY Slip Op 03466
Background
Plaintiff Harold L. Smith and his wife (suing derivatively) commenced this action for personal injuries sustained in a rear-end motor vehicle accident. Plaintiffs moved for summary judgment on liability and on the issue of serious injury under Insurance Law Section 5102(d). In opposition, defendants submitted three unsworn affirmations and one unsworn report from expert witnesses. Plaintiffs objected that the unsworn submissions were inadmissible. The trial court directed both parties to submit supplemental materials under former 22 NYCRR 202.8-g, and defendants then submitted sworn affidavits from their four experts incorporating their earlier unsworn submissions.
Supreme Court, Orange County (Sandra B. Sciortino, J.), accepted the corrective affidavits and denied plaintiff’s motion. Plaintiffs appealed.
Holding
The Appellate Division, Second Department, affirmed the denial of plaintiffs’ summary judgment motion, with costs. The Court held that the Supreme Court properly exercised its discretion under CPLR 2001 to permit defendants to cure the defect in their expert submissions by filing sworn affidavits incorporating and reaffirming their earlier unsworn opinions. While unsworn expert affirmations are not in admissible form under CPLR 2106, CPLR 2001 permits courts to disregard “mistakes, omissions, defects, or irregularities” that do not prejudice a substantial right. Defendants met their burden of raising triable issues of fact on both liability and serious injury once the corrective affidavits were properly considered.
Takeaways
This decision provides important guidance on the interaction between CPLR 2106 (requiring sworn affidavits from non-attorney witnesses) and CPLR 2001 (permitting courts to overlook curable defects). Defense counsel who submit unsworn expert reports may be given an opportunity to cure the deficiency through subsequent sworn affidavits, provided the cure does not prejudice the opposing party’s substantial rights. However, relying on this judicial grace is risky, and the better practice is always to submit sworn affidavits in the first instance.
Why It Matters
This case has practical significance for litigators handling summary judgment motions in motor vehicle cases. The ability to cure an unsworn submission with a subsequent sworn affidavit can salvage an otherwise defective opposition. Both plaintiffs and defendants should be aware that courts have discretion to permit such corrections and that a successful summary judgment motion can be defeated by initially inadmissible evidence that is later cured. For plaintiffs, the lesson is that an opponent’s evidentiary deficiency may not be fatal—the court may well allow correction. For defendants, the lesson is to submit properly sworn submissions from the outset to avoid any risk.