Opinion
04-04-2024
Rogerio Cervantes FIGUEROA et al., Plaintiffs–Respondents, v. RELGOLD, LLC, Defendant–Appellant.
Strikowsky Drachman & Shapiro, New York (Sim R. Shapiro of counsel), for appellant. McMahon & McCarthy, Bronx (Daniel C. Murphy of counsel), for respondents.
Strikowsky Drachman & Shapiro, New York (Sim R. Shapiro of counsel), for appellant.
McMahon & McCarthy, Bronx (Daniel C. Murphy of counsel), for respondents.
Renwick, P.J., Manzanet–Daniels, Kennedy, Mendez, Michael, JJ.
Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered December 21, 2022, which denied defendant’s motion to strike corrections to plaintiff's errata sheet pursuant to CPLR 3116(a), unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff Rogerio Cervantes Figueroa’s corrected responses to counsel’s questions, attributing the cause of his fall to "uneven steps," is a material and critical change to his testimony, and appears tailored to avoid the consequences of his earlier testimony that he did not know what caused him to trip (see Smith v. Costco Wholesale Corp., 50 A.D.3d 499, 856 N.Y.S.2d 573 [1st Dept. 2008]). Figueroa’s reason for making the change – that he was confused about whether he was being asked about what happened to him at the top of the stairs or at the bottom – is insufficient justification for making the changes (see Ashford v. Tannenhauser, 108 A.D.3d 735, 970 N.Y.S.2d 65 [2d Dept. 2013]; see also Marzan v. Persaud, 29 A.D.3d 652, 817 N.Y.S.2d 297 [2d Dept. 2006]). Counsel explicitly asked plaintiff why he started losing his balance at the top of the steps, and plaintiff himself stated in response to the preceding set of questions that he began to lose his balance from the top of the stairs. Moreover, plaintiff testified through an interpreter and did not challenge the adequacy of the translation or express any confusion about the questions being asked during the deposition (Rodriguez v. Jones, 227 A.D.2d 220, 642 N.Y.S.2d 267 [1st Dept. 1996]).