theCPLRblog

An unsigned, but useful Deposition

CPLR R. 3116 Signing deposition; physical preparation; copies
(a) Signing.

Rodriguez v Ryder Truck, Inc., 2012 NY Slip Op 00769 (2nd Dept., 2012)

Contrary to the defendants' contentions, the unsigned but certified deposition of the plaintiff Juan Rodriguez, which was submitted in support of the plaintiffs' motion for summary judgment, was admissible under CPLR 3116(a), since the transcript was submitted by the party deponent himself and, therefore, was adopted as accurate by the deponent (see Ashif v Won Ok Lee, 57 AD3d 700). Additionally, although the plaintiffs initially failed to submit the certification page of the deposition of the defendant Derrick Thomas, they submitted it on reply in response to the defendants' arguments in opposition. Under the circumstances of this case, the late submission did not prejudice the defendants, and the Supreme Court should have considered the certification (see Mazzarelli v 54 Plus Realty Corp., 54 AD3d 1008; cf. Navarrete v A & V Pasta Prods., Inc., 32 AD3d 1003, 1004). Furthermore, although unsigned, as noted above, the transcript of Thomas's deposition was certified, and the defendants did not raise any challenges to its accuracy. Thus, it qualified as admissible evidence for purposes of the plaintiffs' motion for summary judgment (see Zalot v Zieba, 81 AD3d 935, 936; Bennett v Berger, 283 AD2d 374; Zabari v City of New York, 242 AD2d 15, 17). However, the uncertified and unsworn police report submitted by the plaintiffs in support of their motion was inadmissible (see Toussaint v Ferrara Bros. Cement Mixer, 33 AD3d 991, 992; Bates v Yasin, 13 AD3d 474; Lacagnino v Gonzalez, 306 AD2d 250).

Privilege and Deposition Transcripts

CPLR R. 3116

CPLR R. 3117

CPLR § 4503 Attorney

PJI 1:76

Ramirez v Willow Ridge Country Club, Inc., 2011 NY Slip Op 03714 (App. Div., 1st 2011)

To the extent plaintiff asserts the verdict was inconsistent, the argument is unpreserved since it was not raised before the jury was discharged (see Barry v Manglass, 55 NY2d 803 [1981]). 

Plaintiff's claim that the court improperly charged the jury pursuant to PJI 1:76 that an inference could be drawn from plaintiff's refusal to waive his attorney-client privilege and allow a former paralegal at the firm which represented plaintiff in his Worker's Compensation claim to testify for the defense is without merit (Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d 137, 141 [1983] ["it is now established that in civil proceedings an inference may be drawn against the witness because of his failure to testify or because he exercises his privilege to prevent another from testifying, whether the privilege is constitutional . . . or statutory"]).

Plaintiff also asserts that the court erred in precluding plaintiff's use of the EBT transcript of defendant's witness Alexander Jack — plaintiff's foreman — during cross-examination on the grounds that plaintiff failed to show that he complied with CPLR 3116. Specifically, CPLR 3116(a) provides that a deposition shall be submitted to the witness who can make changes. The witness must then sign the deposition under oath. If the witness fails to sign and return the deposition within 60 days, it may be used as fully as though signed. A failure to comply with 3116(a) results in a party being unable to use the transcript pursuant to CPLR 3117 (see Santos v Intown Assoc., 17 AD3d 564 [2005]; Lalli v Abe, 234 AD2d 346 [1996]). It is the burden of the party proffering the deposition transcript to establish compliance with CPLR 3116(a) (Pina v Flik Intl. Corp., 25 AD3d 772, 773 [2006]).

Here, the court properly precluded the use of Jack's unsigned deposition transcript during Jack's cross-examination inasmuch as plaintiff failed to establish that the transcript was sent to Jack and that he failed to return it within 60 days. Although at one point in his testimony Jack seems to state that he signed the deposition at his lawyer's office, upon further questioning, it appears that he was confused and was actually referring to taking an oath on the date the deposition was taken (see CPLR 3113[b]), rather than on a separate date when the transcript was sent to him for changes and signing pursuant to CPL 3116.

Although there is no time frame as to when a party should send a deposition transcript to a witness for compliance with CPLR 3116(a), a trial court need not adjourn a trial during the cross-examination of a witness so the that the party cross-examining the witness may comply with the section. In any event, since plaintiff does not specify any parts of the deposition that he would have used, any error would appear to be harmless.

Nor has plaintiff demonstrated that any of his other claims regarding the conduct of the trial court were so prejudicial as to deprive him of a fair trial. The rulings on admissibility of evidence were proper and, in any event, any error was harmless.

The bold is mine.  The privilege potion is probably the most interesting.

CPLR R. 3212 and R. 3116: proof, inadmissible at trial, but sufficient to defeat SJ

CPLR R. 3116 Signing deposition; physical preparation; copies
(a) Signing.

CPLR R. 3212 Motion for summary judgment

Moffett v Gerardi, 2010 NY Slip Op 05990 (App. Div., 2nd, 2010)

"A certificate of acknowledgment attached to an instrument such as a deed raises a presumption of due execution, which presumption, in a case such as this, can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed" (Son Fong Lum v Antonelli, 102 AD2d 258, 260-261, affd 64 NY2d 1158; see Beshara [*2]v Beshara, 51 AD3d 837, 838). Here, the defendant made a prima facie showing of entitlement to judgment as a matter of law by providing a copy of the notarized January 1998 deed which included a certificate of acknowledgment (see Beshara v Beshara, 51 AD3d 837; Elder v Elder, 2 AD3d 671).

In opposition, the plaintiff submitted his own affidavit contesting the signature on the deed, the deposition transcript of the notary public who purportedly notarized the deed, and an unsworn report of a handwriting expert. The plaintiff failed to establish that he had sent the deposition transcript to the notary public for review pursuant to CPLR 3116(a), thereby rendering the transcript inadmissible at trial (see Marmer v IF USA Express, Inc., 73 AD3d 868; Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 902; McDonald v Mauss, 38 AD3d 727, 728; Pina v Flik Intl. Corp., 25 AD3d 772; Scotto v Marra, 23 AD3d 543; Santos v Intown Assoc., 17 AD3d 564). However, this failure did not preclude the Supreme Court from considering the transcript in opposition to the motion for summary judgment (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068; Phillips v Kantor & Co., 31 NY2d 307; Franklin v 2 Guys From Long Pond, Inc., 50 AD3d 846; Kwi Bong Yi v JNJ Supply Corp., 274 AD2d 453; Silvestri v Iannone, 261 AD2d 387; Zuilkowski v Sentry Ins., 114 AD2d 453). Generally, when opposing a motion for summary judgment, a party must submit evidence in admissible form sufficient to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557). In certain circumstances, "proof which might be inadmissible at trial may, nevertheless, be considered in opposition to a motion for summary judgment" (Zuilkowski v Sentry Ins., 114 AD2d 453), as long as the party seeking to use such evidence provides an acceptable excuse for the failure to tender the evidence in admissible form (see Friends of Animals v Associates Fur Mfrs., 46 NY2d at 1068; Allstate Ins. Co. v Keil, 268 AD2d 545), and the inadmissible evidence does not provide the sole basis for the denial of summary judgment (see Phillips v Kantor & Co., 31 NY2d 307). 

Here, the plaintiff's excuse that it was his understanding that the defendant, as the party who had noticed the deposition and hired the court reporter, was forwarding a copy of the deposition transcript to the notary public for review, was reasonable. Moreover, the notary public's deposition testimony that the deed was not notarized in the usual manner in which he notarized documents and, as a result, that he would not testify that the signature on the deed belonged to the plaintiff, along with the plaintiff's own affidavit that he did not sign the subject deed, rebutted the presumption of the deed's validity as created by the certificate of acknowledgment (see Alvarez v Prospect Hosp., 68 NY2d 320; Hoffman v Kraus, 260 AD2d 435). Accordingly, since there is a triable issue of fact, the Supreme Court, upon reargument, should have adhered to its prior determination denying the defendant's motion for summary judgment dismissing the complaint.

The bold and underline are mine.

CPLR R. 3212; 4518 Gaps in proof not enough. Records not admissible. Plus CPLR 3116(a): Deposition not signed

CPLR R. 3212 Motion for summary judgment

CPLR R. 4518 Business records

CPLR R. 3116 Signing deposition; physical preparation; copies
(a) Signing.

Shafi v Motta, 2010 NY Slip Op 03895 (App. Div., 2nd, 2010)

On their motion for summary judgment, the defendants had the burden of establishing, by proof in admissible form, their prima facie entitlement to judgment as a matter of law (see CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 561; Myers v Ferrara, 56 AD3d 78, 83). This burden may be satisfied only by the defendant's affirmative demonstration of the merit of the defense, rather than merely by reliance on gaps in the plaintiffs' case (see DeFalco v BJ's Wholesale Club, Inc., 38 AD3d 824, 825; Cox v Huntington Quadrangle No. 1 Co., 35 AD3d 523, 524; Pearson v Parkside Ltd. Liab. Co., 27 AD3d 539; Mondello v DiStefano, 16 AD3d 637, 638). Here, the defendants submitted [*2]hospital laboratory reports and records of the New York City Department of Health and Mental Hygiene. As the Supreme Court concluded, however, because these documents were neither certified nor authenticated, and thus were not in admissible form, they could not be considered on the motion (see CPLR 4518[c]; Banfield v New York City Tr. Auth., 36 AD3d 732; Baez v Sugrue, 300 AD2d 519, 520; cf. Whitfield v City of New York, 48 AD3d 798, 799). Moreover, the affirmation of the defendants' attorney submitted with very brief excerpts of deposition testimony was insufficient to establish the defendants' entitlement to judgment as a matter of law (see Irving v Great Atl. & Pac. Tea Co., 269 AD2d 358, 359; Cicolello v Limb, 216 AD2d 434). Inasmuch as the defendants failed to carry their burden, denial of the motion was required without regard to the sufficiency of the papers submitted in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Molina v Belasquez, 1 AD3d 489).

Marmer v IF USA Express, Inc., 2010 NY Slip Op 04151 (App. Div., 2nd, 2010)

The defendants did not meet their prima facie burden of showing that the plaintiff did not sustain a serious injury as a result of the subject accident. Specifically, the defendants failed to show that the plaintiff did not sustain a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the subject motor vehicle accident, as articulated in Insurance Law § 5102(d) (hereinafter the 90/180-day category) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In the plaintiff's bill of particulars, she clearly set forth that, as a result of the subject motor vehicle accident, she sustained, inter alia, a serious injury under the 90/180-day category of Insurance Law § 5102(d). The affirmed reports of the defendants' examining physicians did not specifically relate any of their findings to this 90/180-day category of serious injury (see Negassi v Royle, 65 AD3d 1311; Ismail v Tejeda, 65 AD3d 518; Neuberger v Sidoruk, 60 AD3d 650; Miller v Bah, 58 AD3d 815; Scinto v Hoyte, 57 AD3d 646). Further, the unsigned deposition transcript of the plaintiff, which the defendants submitted in support of their motion, did not constitute admissible evidence in light of the defendants' failure to demonstrate that the transcript was forwarded to the plaintiff for her review pursuant to CPLR 3116(a) (see Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901; McDonald v Mauss, 38 AD3d 727; Pina v Flik Intl. Corp., 25 AD3d 772; Santos v Intown Assoc., 17 AD3d 564). Since the defendants [*2]failed to meet their prima facie burden, we need not consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Negassi v Royle, 65 AD3d 1311; Ismail v Tejeda, 65 AD3d 518; Neuberger v Sidoruk, 60 AD3d 650; Miller v Bah, 58 AD3d 815).

The bold is mine.

NYSBA, CPLR 3212 and CPLR 3116(a)

CPLR R. 3116 Signing deposition; physical preparation; copies

(a) Signing. The deposition shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness before any officer authorized to administer an oath. If the witness fails to sign and return the deposition within sixty days, it may be used as fully as though signed. No changes to the transcript may be made by the witness more than sixty days after submission to the witness for examination.

David Horowitz has a great article in New York State Bar Association Journal about the use of unsigned deposition transcripts in summary judgment motions titled "Signature Required."  As we all know, summary judgment must be supported by proof in admissible form.  And generally, unsigned deposition transcripts are not proof in admissible form.  Why?  CPLR R. 3116(a), requires that the deposition transcript be signed by the witness.  If that isn't done, the transcript may be admissible provided that the transcript was actually provided to the witness for his or her signature within 60 days of receipt.  The rule is not without it's exceptions, however.  For example, "When a party moving for summary judgment utilizes an unexectuted transcript of its party witness, thereby 'adopting' the contents...and the transcript is then relied on by the party opposing the motion, the transcript may be considered as proof in opposition by the opposing party." (quote is from the article.  I have no idea how to cite to it).  Another example is when it is used as a party admission.  You'll have to read the article to get all the cites.  If not for the cites, you should read it, just because.  

Oh, ok, just one cite, Pina v. Flik Intern. Corp., 808 N.Y.S.2d 752 (App. Div., 2nd, 2007).  There the Appellate DIvision makes it pretty simple.   Either it's signed, or you show that you sent it to be signed. Otherwise, you're screwed:

The Supreme Court properly denied the defendants' motions for summary judgment since they failed to submit sufficient evidence in admissible form to establish their entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The defendants failed to show that the unsigned deposition transcripts of various witnesses they submitted in support of their motions had previously been forwarded to the relevant witnesses for their review pursuant to CPLR 3116 (a). Hence, contrary to the defendants' contention, they were not admissible (see Lalli v Abe, 234 AD2d 346 [1996]; Palumbo v Innovative Communications Concepts, 175 Misc 2d 156 [1997], affd 234 AD2d 346 [1998]; Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3116:1).

Yes, I know, there are exceptions, but generally, you will be screwed.

Compare Pina with St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co., 2010 NY Slip Op 00668 (App. Div., 2nd, 2010).  In that case the defendant offered several unsigned EUO transcripts as evidence in support of its motion for summary judgment.  Defendant offered them under the theory that (1) they weren't being offered for their truth and (2) they were admissions.  The Appellate Division found that defendant's cross motion should be have granted, reversing the lower court.  The Appellate Term, twice now, has held that assignors are not parties.  I read defendant's briefs, but don't quite understand just how defendant thought the transcripts were relevant if not offered for their truth.  JT appears equally confused.  And the Appellate Division's decision offers zero insight.  The whole thing is weird.

So, in conclusion, make sure to read the article.  It was the first thing I turned to when I opened the magazine.  I'm a nerd.  Fat too.  God help me.

[edit] Sorry, I forgot to add something.  In the very beginning of the article Mr. Horowitz briefly discusses the history of summary judgment, including the initial fight as to whether, and I'm paraphrasing here, it encroached on the right to trial by jury.  The issue of whether summary judgment is constitutional, it appears, is not a new argument.  If anyone is interested, there is a great Law Review article on that very topic.  I posted it back in September with links to the articles.    

CPLR § 304; §403

CPLR § 304. Method of commencing action or special proceeding

CPLR § 403. Notice of petition; service; order to show cause

(d) Order to show cause. The court may grant an order to show cause to be served, in lieu of a notice of petition at a time and in a manner specified therein.

Matter of Ruine v Hines, 2008 NY Slip Op 09928 (App. Div., 1st)

The mode of service provided for in an order to show cause is jurisdictional and must be
literally followed (see CPLR 304, 403[d]; European Am. Bank v Legum, 248 AD2d 206 [1998]). Petitioner's pro se status is not an excuse for noncompliance (see Goldmark v Keystone & Grading Corp, 226 AD2d 143 [1996]).

The bold is mine.

CPLR R. 3116

Rule 3116. Signing deposition; physical preparation; copies

(a) Signing.

Ashif v Won Ok Lee, 2008 NY Slip Op 09936 (App. Div., 2nd)

Contrary to the contention of the third-party defendants Mohmmd Chowdhury and Domenico Mancini (hereinafter the appellants), the unsigned deposition transcript of the third-party defendant Rehmat Khan, which Khan submitted in support of his motion for summary judgment, and which was relied upon by the defendant third-party plaintiff, Won Ok Lee, in opposition to the appellants' cross motion for summary judgment, was admissible under CPLR 3116(a), since that transcript was submitted by the party deponent himself and therefore was adopted as accurate by Khan, as the deponent (cf. McDonald v Mauss, 38 AD3d 727; Pina v Flik Intl. Corp., 25 AD3d 772, 773; Scotto v Marra, 23 AD3d 543). Similarly, the MV-104 accident report prepared by Khan was properly [*2]considered as a party admission (see Fox v Tedesco, 15 AD3d 538; Castellano v Citation Cab Corp., 35 AD2d 842).

The bold is mine.