Opinion
113359/05.
Decided on May 3, 2010.
Jonathan R. Ratchik, Esq., Kramer Dunleavy, LLP, New York, NY, For plaintiff.
Peter C. Lucas, ACC, The City of New York Law Department, New York, NY, For defendant City of New York.
By decision and order dated January 6, 2010, I denied defendant City's motion for an order summarily dismissing the complaint absent proof that the unexecuted transcripts of the depositions of its own witnesses upon which it relies were sent to the witnesses for correction (CPLR 3116[a]), holding that "[c]ertification of the transcripts is insufficient for affirmative use as opposed to use as an admission by a party-opponent."
Now, by notice of motion dated January 27, 2010, defendant moves pursuant to CPLR 2221 for an order granting it leave to reargue and/or renew its motion. Specifically, defendant argues that I overlooked authority for the proposition that unexecuted transcripts, if certified as accurate, are admissible as if signed, and alleges the following:
No party, including Plaintiff, has admitted to exchanging signed deposition transcripts. All of the deposition transcripts within the City's possession are unsigned. The City never could have compelled the other parties in this action to actually execute the transcripts of their witnesses. Arguably, this is why the CPLR sec 3116(a) provides a mechanism for the use of unexecuted transcripts once transcripts have been exchanged.
(Affirmation of Peter C. Lucas, ACC, dated Jan. 27, 2010 [Lucas Aff.]). It also asserts that absent any challenge by plaintiff to the accuracy of the transcripts, CPLR 3116(a) permits their use once 60 days pass "after exchange," and that the court must permit the use of unexecuted transcripts in these circumstances. Should reargument be granted, defendant seeks the summary dismissal it sought in its original motion.
Should reargument be denied, defendant moves for leave to renew its motion based on new evidence, specifically, plaintiff's notice to defendant, dated June 14, 2007, seeking the signature of Department of Transportation record searcher Abraham Lopez on his deposition, and a letter dated August 28, 2008, whereby plaintiff submitted to defendant, for the signature of New York City Department of Environmental Protection record searcher Bruce Robinson, his deposition along with a statement of any changes. ( Id., Exh. E). Defendant contends that this evidence, even if previously available, may be considered because the issue of the unexecuted transcripts was raised by me sua sponte. ( Id.). It also asserts that plaintiff's attempts to obtain the signatures of defendant's deposition witnesses and failure to raise any issue as to their accuracy during discovery constitutes a waiver of any disputes plaintiff may have had with the accuracy of the deposition testimony. ( Id.).
In opposition, plaintiff asks that I deny that portion of defendant's motion seeking reargument absent any indication that I misapprehended the pertinent law, and deny that portion seeking leave to renew absent any reasonable justification for defendant's failure to present the June 2007 notice and August 2008 letter on its original motion. Plaintiff also denies that the issue of the use of the unexecuted transcripts was raised sua sponte, observing that she raised it in opposition to defendant's original motion. (Affirmation of Jonathan R. Ratchik, Esq., dated Feb. 16, 2010).
I address renewal first and observe that plaintiff raised the issue of the unexecuted transcripts in her opposition to defendant's original motion (Lucas Aff., Exh. B) and that defendant did not submit the June 2007 notice and August 2008 letter with its original motion, and failed to do so in reply to plaintiff's opposition. The First Department recently held as follows in Henry v Peguero, AD3d, 2010 NY Slip Op 03477 (1st Dept, Apr. 29, 2010):
Renewal is granted sparingly . . .; it is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation. . . . While the statutory prescription to present new evidence "need not be applied to defeat substantive fairness, "such treatment is available only in a "rare case," such as where liberality is warranted as a matter of judicial policy ( see Wattson v. TMC Holdings Corp., 135 AD2d 375 [1987] [leave to amend complaint]), and then only where the movant presents a reasonable excuse for the failure to provide the evidence in the first instance . . .
Consequently, defendant's basis for renewing is insufficient. (CPLR 2221[e][2], [3]; see Connors, Supplementary Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3116, C3116:1 [2008] [renewal with proof that transcripts actually submitted for review and signature permissible if movant can establish reasonable justification for failure to present such facts on prior motion]).
CPLR 3116 provides, in pertinent part, as follows:
(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.
(b) Certification and filing by officer. The officer before whom the deposition was taken shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. He shall list all appearances by the parties and attorneys.
Here, it is undisputed that defendant did not respond to plaintiff's requests that Lopez and Robinson, each of whom work for City agencies, execute their depositions. Having failed to comply with CPLR 3116(a), defendant is precluded from affirmatively using the unexecuted transcripts. ( See Siegel, NY Prac § 357 [3d ed] [improper practice for party required to execute deposition to submit it on motion before doing so]). The decisions cited by defendant do not stand for the proposition that compliance with CPLR 3116(a) is unnecessary where the transcript is certified or the facts asserted therein are not challenged by the opposing party. Rather, absent any discussion in these decisions of the issue presented here, one may presume from some of the decisions compliance with the statute. ( See Zabari v City of New York, 242 AD2d 15, 17 [1st Dept 2001]; Bennett v Berger, 283 AD2d 374, 375 [1st Dept 2001]; Eldon Group Am. v Equiptex Indus. Prods. Corp., 236 AD2d 329, 329 [1st Dept 1997]; Clarke v Consol. Edison Co. of New York, 25 Misc 3d 1206[A], 2009 NY Slip Op 51985[U], * 2 [Sup Ct, New York County]; Crespo v HRH Constr. Corp., 24 Misc 3d 1246[A], 2009 NY Slip Op 51893[U], * 15; Howard v The City of New York, Sup Ct, NY County, Smith, J., Nov. 4, 2009, Index No. 111101/06). That the transcripts were certified as accurate and unchallenged by the opposing parties in these cases merely enhanced the transcripts' admissibility. In other decisions, the transcripts were used as admissions ( White Knight Ltd. v Shea , 10 AD3d 567 , 567 [1st Dept 2004]; Eldon Group, 236 AD2d 329), and the other decision cited by defendant is distinguishable ( Tower Mineola Ltd. Ptnership v Potomac Ins. Co. of Ill., 14 Misc 3d 1238[A], 2007 NY Slip Op 50418[U], * 10 [Sup Ct, New York County 2007]).
Accordingly, it is hereby
ORDERED, that defendant's motion for an order seeking leave to reargue and/or renew is denied.
This constitutes the decision and order of the court.