By: Paul Leclair//October 17, 2013
By: Paul Leclair//October 17, 2013//
For the litigating attorney, there are many piece parts to keep track of in preparing for trial, but one to include in an attorney’s check-list for state court trial preparation is the obligation of CPLR 3116. A litigator must contend with the simple requirement that a deposition must be submitted to a witness for review and signing. The perils of failing to satisfy this seemingly simple requirement can be great.
CPLR 3116 provides that a deposition must be submitted to a witness for examination and signature. The witness then has the opportunity pursuant to the rule to make changes in the form or substance of a response, and those changes and reasons for the changes must be attached to the end of the deposition transcript. The witness must sign the deposition in front of a notary. If the witness fails to sign and return a transcript within 60 days, the deposition may be used as if it had been signed. Following the 60-day period, the witness may not make any changes to the transcript.
Significant problems arise in the event that the party who intends on using the deposition fails to submit it to a witness for review and signing. In a personal injury action in which the jury found for the defense, the plaintiff could not persuade the First Department’s Appellate Division that the trial court committed an error in precluding the use of the deposition transcript of defendant’s witness (the plaintiff’s foreman) during cross-examination. The trial court found that the plaintiff failed to establish that the unsigned deposition was submitted to the witness pursuant to CPLR 3116.
In affirming the decision, the Appellate Division noted that while there was no time frame as to when a party had to submit a deposition transcript to a witness, the trial court was not obligated to adjourn the trial during cross-examination to allow compliance with the rule. As a result, plaintiff was not entitled to use the deposition on cross-examination of the foreman, Ramirez v. Willow Ridge Country Club, 84 A.D.3d 452 (1st Dept. 2011).
Not only does the penalty for failing to comply with CPLR 3116 include not being permitted to use a deposition on cross-examination at trial, but a party may not use the offending deposition for any other purpose at trial, on motion, or in any other proceeding otherwise permissible under CPLR 3117.
Most of the case law relative to failing to submit a deposition to a witness arises on motions for summary judgment. The Appellate Division, Second Department recently ruled that the defense did not submit plaintiff’s deposition in admissible form because the deposition was unsigned and uncertified. In the same case, the court held that party may use its own unsigned excerpts of deposition testimony under CPLR 3116 because when a party submits its own deposition, the party is vouching for its accuracy, Pavane v. Marte, 2013 NY Slip Op 5991 (2d Dept. Sept. 25).
If a party does not receive a signed copy of the transcript back from a witness, the party must submit proof that it submitted the transcript to the witness for review, and that the witness failed to return the transcript within the prescribed 60 days, Pina v. Flick Int’l Corp., 25 A.D.3d 772 (2d Dept. 2006).
With the initial motion papers, it is good practice to submit to the court a witness’ signature and certification of the deposition, or in their absence, proof of submission of the deposition to the witness and a lack of response more than 60 days afterwards.
However, given that the devil oftentimes is in the details and an attorney may not have adequate foundation for all of the useful deposition transcripts, an attorney may choose strategically not to submit a signature or proof of submission to a witness with the initial moving papers. Courts have generally allowed parties to make up the deficiency and submit the required showing in reply papers in response to objections raised in opposition, Pavane v. Marte, supra.
If such a tactic is employed, an attorney should consider carefully whether there will be opportunity for reply papers in a particular motion. In one instance, the Queens County Supreme Court applied the rule and denied a motion for summary judgment when the motion was unopposed. The defense moved for summary judgment in a personal injury action, and the plaintiff did not oppose the motion.
The defendant’s motion was based on an attorney’s affirmation, plus plaintiff’s unsigned deposition testimony, plaintiff’s unsigned 50-h statutory hearing transcript testimony, and an unsigned non-party witness bus operator’s deposition testimony. The court held that defendant failed to comply with the requirements of CPLR 3116 and denied the motion for summary judgment, Gonzalez v. Manhattan Transit Auth., 2007 NY Misc. LEXIS 4357 (Queens Co S Ct 2007).
Accordingly, in light of the defense’s failure to make a prima facie showing that it was entitled to judgment in its initial papers, its motion was denied even though unopposed.
At deposition, attorneys should consider if they wish to obviate the need to comply with CPLR 3116 or take advantage of its protections, when deciding whether to stipulate to the waiver of reviewing and signing the deposition transcript. While they vary from one geographic region to another, the “usual stipulations” proposed at the beginning of each deposition may include a waiver of the reviewing and signing of a transcript. It is wise to ask a court reporter at the outset of a deposition to identify what the “usual stipulations” are and be sure to cover the concept of reviewing and signing the transcript.
Following receipt of a deposition transcript from a court reporter, it is a good practice for an attorney to submit a deposition transcript promptly to the deponent of an adverse party or a non-party witness in cases in which the deponent did not waive the reviewing and signing of the deposition transcript. It is a simple task. An attorney does not want to be caught with a motion deadline or the eve of trial looming without being able to make a proper showing under CPLR 3116.
Much work is involved preparing and conducting depositions, and it would be mind-numbingly painful not to be able to fully leverage useful deposition testimony by failing to engage in a simple procedural task.
Paul Leclair is a partner in the Rochester law firm of Leclair Korona Giordano Cole LLP, where he concentrates his practice in civil litigation with an emphasis on business/commercial, construction and personal injury matters.