In Ostrov v. Rozbruch, the First Department held that it was error for a trial court to permit the plaintiff to submit supplemental materials on a motion for summary judgment. The trial court had authorized the supplemental papers after concluding that the defendant doctor had met his burden on summary judgment, but that the plaintiff’s papers only contained a limited discussion of a possibly unplead, new theory of liability. Both parties then submitted several supplemental affirmations, including affirmations clarifying previous statements as well as affirmations by new doctors in different specialties discussing the new theory of liability. The trial court then denied the defendant's motion relying on one of the supplemental affirmations submitted by the plaintiff, as well as a medical article first mentioned by the plaintiff at a second oral argument.
In reversing the trial court, the First Department rejected a broad reading of its precedents that had previously approved of the use of supplemental affirmations where there was no prejudice and an opportunity to respond. Instead, the First Department held that the CPLR time limitations on summary judgment motion practice are the rule and that supplemental submissions should be sparingly used to clarify limited issues already discussed "and should not be utilized as a matter of course to correct deficiencies in a party’s moving or answering papers.” Since the plaintiff's original opposition papers failed to meet her burden of raising a question of fact, the Court held that the plaintiff should not have been permitted to file supplemental materials to cure the defects in her papers.