Opinion
1432/2000.
Decided December 28, 2005.
Edward L. Sadowsky, Esq., Blank Rome LLP, Attorneys for David Ciraolo, son of decedent, Kew Gardens, NY.
Anthony Genovesi, Jr., Esq., Borchert, Genovesi, LaSpina Landicino, P.C., Attorneys for Charles Ciraolo Whitey Produce, son of decedent, Brooklyn, NY.
Petitioner seeks an order pursuant to CPLR § 4404(a), vacating the decision rendered on September 8, 2005, dismissing the petition and denying respondent's motion in limine suppressing the deposition testimony of Charles J. Ciraolo.
During the trial, petitioner sought to offer into evidence the deposition transcript of the respondent, Charles J. Ciraolo, Sr. After a day of questioning, the deposition was adjourned. The deponent died six months later without concluding the deposition. The transcript of the deposition was not exchanged as required by CPLR § 3116, but was provided to the petitioner approximately eight months subsequent to decedent's death; one year and two months after the deposition was taken.
Pursuant to CPLR § 3113, examination and cross-examination of deponents shall proceed as permitted in the trial of actions in open court when the deposition of a party is taken at the instance of an adverse party. The deponent may be cross-examined by his own attorney and cross examination need not be limited to the subject matter of the examination in chief.
Harmon v. Bank of Gouverneur, 38 AD2d 988, an Appellate Division, Third Department, case quoting from Stern v. Inwood Townhouse, 22 AD2d 650, and Owens v. Sokol, 65 AD2d 569, a Second Department case, held, "The general rule is that a deposition is not admissible as evidence in chief unless the opposing party has had an opportunity to cross-examine deponent." The entire examination was suppressed as defendants were denied the opportunity to test the veracity of the witness or to correct any inaccuracies. The deposition of a witness who died prior to completion of the examination in chief and therefore prior to cross examination, was inadmissible.
In the Stern v. Inwood Townhouse case, even though the court suppressed the entire deposition because defendants denied the right to cross-examine, it stated that "it should be noted, however, that such suppression is no bar to the introduction into evidence of any portion of the testimony of the witness if based upon a proper foundation, they may be received as admissions or are properly admissible in any other manner."
The rationale for allowing admissions as exceptions to the hearsay rule is that no party would make a statement adverse to their own interests unless there was some reliability that would attach to that statement.
When testimony is given under oath, the deponent represented by counsel and allowed to be cross-examined, its introduction into evidence should be allowed ( Siegel v. Waldbaum, 59 AD2d 555).
In the Siegel case, a pre-trial deposition was used as evidence in chief against a deceased defendant who had been present when the prior testimony was given. Defendant's inability to participate in the deposition barred its later use ( Estate of Mead, 129 AD2d 1008). Where a defendant did not have an opportunity for meaningful confrontation and cross-examination, the equities weigh in favor of excluding the pre-trial deposition (CPLR § 4519; McKinney's 7B, Practice Commentaries; Rosenberg v. Grace, 158 Misc 2d 32).
Evidence in the form of deposition testimony of a deceased witness is admissible at trial upon the determination that its introduction was based on a proper foundation ( Kane v. Coundorous, 11 AD3d 304; State of New York v. Metz, 241 AD2d 192). In the case at bar, there was no opportunity to confront and cross-examine the witness, the deposition transcript was suppressed, and no proper foundation was laid to allow it.
Petitioner seeks a new trial stating that even where the deposition transcript is suppressed, and there was no opportunity to cross-examine the witness, all the deposition passages should be admitted into evidence as admissions.
Pursuant to CPLR § 3116(a), a deposition transcript is allowed into evidence if it is both signed by the deponent and certified by the witness. If the deponent fails to sign and return the deposition within sixty (60) days, it may be used as though it were signed.
The key factor here is that the deposition transcript be sent to the deponent. The deponent can then either sign the transcript as accurate or "default" after a period of sixty (60) days when it has the same effect as if he signed it. A deposition may be admitted if it has been exchanged with the other side (CPLR § 3116(a)) and it has been certified and signed (CPLR § 3116(b)) or even if it is unsigned if the deponent does not return the deposition transcript within sixty days (CPLR § 3116(a)). If a deposition transcript has not been exchanged in order for the other party to use it under 3116(a), it can be used as an admission if it is a party that was deposed and a proper foundation was laid.
At trial, a certified unsigned deposition similar to an affidavit cannot be used. A proper foundation must be laid. However, in a motion for summary judgment, just as an affidavit may be used, an unsigned certified deposition may also be used. The certification of the deposition is the equivalent to an affidavit.
In a decision dated November 10, 2004, this court found that there were issues of fact to be resolved requiring a trial; namely, whether the decedent was an owner of any shares of the corporation; Whitey Produce, Inc. Submitted in the motion papers was an application for subsidized housing submitted by the decedent to HUD whereby she claimed she had no assets, which supports the position that she did not own any shares. On a motion for summary judgment, the use of affidavits is to lay bare proof sufficient to warrant a trial. However, at trial use of the affidavit alone is insufficient requiring testimony. Petitioner argues for use of the deposition transcript as an admission that Charles Cirailo, Sr. removed the decedent's name from the agricultural PACA license as evidence of ownership. Petitioner states that the law makes an exception for certified transcripts simply as to the fact that the statements were made and the fact that it was certified is "foundation enough for the excerpts of this deposition to be admitted into evidence" as admissions. If this court were to accept that analysis, it should also have accepted the decedent's affidavit submitted in the application to HUD stating she had no assets at the time of her death. In fact, that was the main reason this court denied summary judgment based on the affidavit stating there were issues of fact requiring a trial.
Petitioner repeatedly states there is nothing in the law which precludes admission of a party's unsigned deposition and repeatedly refers to the Morchik case as standing for the proposition that certified unsigned depositions are foundations sufficient to be admitted into evidence as admissions ( Morchik v. Trinity School, 257 AD2d 534).
A brief holding of related cases is necessary to understand when an admission can be introduced into evidence; whether on a motion for summary judgment or at trial.
The Morchik case stands for the proposition that an unsigned certified deposition can be introduced as evidence on a motion for summary judgment as an affidavit could, but not at trial. Newell v. Rice, 236 AD2d 843, stands for the same proposition; written admissions may be submitted on a motion for summary judgment where the transcripts were sent to the witness for review and signature (CPLR § 3116(a)). 329 Eldon Group America v. Equiptex, 236 AD2d 329, stands for the proposition that certified depositions, although unsigned, are admissible if they were exchanged for review and sixty days passed. If the transcript was not properly exchanged giving time for the other side to review for corrections pursuant to CPLR § 3116(a), it cannot be used in a motion for summary judgment ( Palumbo v. Innovative Communications Concepts, 175 Misc 2d 156; Siegel, 1993 Supp Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR § C3116:1, 1997-1998 Pocket Part, at 94). The court prohibited the case of a non-party witness, whose statements would not constitute admissions against the respondent. The court held that there were several alternate predicates to the use of a deposition transcript. The transcript has to be submitted to the witness so he can read it and make changes that are desired. The witness then signs it under oath and then the transcript may be utilized as an admission. If the transcript is unsigned, the party seeking to use the deposition transcript has the burden of showing that the transcript was sent for review and sufficient time passed.
It is highly improper and prejudicial to allow a party to conduct an examination before trial of another party, not return the transcript, and then attempt to ambush the witness ( Jacobs v. Herrera, 4 Misc 3d 1018 (A)). Similarly, in a motion for summary judgment, unsigned deposition transcripts cannot be used if not exchanged ( Scott v. Marra, 2005 WL 3116319 (AD2d Dept; Santos v. Intown Assoc, 17 AD3d 564).
Clearly, the cases hold that if a deposition transcript is signed and certified, it can be introduced as evidence. If it is not signed or certified and a non-party witness was deposed, the deposition transcript is disallowed. If, however, an unsigned and certified deposition transcript will be allowed to be introduced into evidence as an admission only if a proper foundation was laid, i.e., properly exchanged and more than sixty days passed to provide for any changes to be made to assure that the parties may be relying on an accurate transcript.
A proper foundation was not provided here. In fact, it could not have been provided for as the deponent had died approximately eight months before a copy of the transcript was sent.
Petitioner failed to call as witnesses the stenographer, prior counsel who were present at the deposition, or any other parties who heard the testimony, to lay a proper foundation that they were present and heard the testimony in order to introduce the deposition transcript as evidence.
The deposition transcript would be allowed as an affidavit would, on a motion for summary judgment, but at trial, testimony is required for its introduction.
Accordingly, petitioner's motion to vacate the decision after trial dismissing the petition is denied.
Petitioner's motion to deny respondent's motion suppressing the deposition testimony of Charles Ciraolo, Sr. is denied.
Petitioner's motion to continue the trial and to stay the entry of judgment dated September 8, 2005, is denied.
This constitutes the decision and order of the court.