Nicholas Hurzeler Publishes Article On ‘Feigned Issue of Fact’ Rule in New York Law Journal

New York, N.Y. (April 23, 2019) – New York Partner Nicholas P. Hurzeler has authored an article published by the New York Law Journal, titled “The ‘Feigned Issue’ Rule: Ripe for a Legislative Fix?” The article looks at the “strange” New York civil practice common law “feigned issue of fact” rule, which can lead to sworn statements being ignored or deemed inadmissible by the court when they contradict deposition testimony and are considered to be “feigned.”

In the article, Mr. Hurzeler analyzes case law from the four New York Appellate Divisions, looking at key cases that have dealt with this rule, and highlighting the fact that such a rule may treat an affiant with too much leniency by treating their material misrepresentation as “a mere nullity.” Mr. Hurzeler also dives into the contradiction between the rule and New York’s Penal Law regarding perjury, and the inherent problems such a rule creates.

Mr. Hurzeler is a vice chair of Lewis Brisbois’ Appellate Practice and spends the bulk of his time briefing and arguing appeals in the First and Second Departments of New York’s Appellate Divisions.

Read the full article here (subscription may be required).