Opinion
2015-09190, Index No. 11489/12.
03-30-2016
Anthony TORRES, respondent, v. BOARD OF EDUCATION OF CITY OF NEW YORK, et al., appellants.
Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Harry Steinberg and Daniel S. Kotler of counsel), for appellants. Gary S. Alweiss, Mineola, N.Y., for respondent.
Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Harry Steinberg and Daniel S. Kotler of counsel), for appellants.
Gary S. Alweiss, Mineola, N.Y., for respondent.
L. PRISCILLA HALL, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
Opinion In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Edwards, J.), entered July 30, 2015, which denied their motion to strike the errata sheets relating to the plaintiff's deposition testimony.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion to strike the errata sheets relating to the plaintiff's deposition testimony is granted.
CPLR 3116(a) provides that a witness may make “changes in form or substance” to his or her deposition testimony as long as such changes are accompanied by “a statement of the reasons given by the witness for making them.” A correction will be rejected where the proffered reason for the change is inadequate (see Ashford v. Tannenhauser, 108 A.D.3d 735, 736, 970 N.Y.S.2d 65 ; Shell v. Kone El. Co., 90 A.D.3d 890, 891, 935 N.Y.S.2d 132 ; Kelley v. Empire Roller Skating Rink, Inc., 34 A.D.3d 533, 534, 827 N.Y.S.2d 70 ). Further, material or critical changes to testimony through the use of an errata sheet is also prohibited (see Horn v. 197 5th Ave. Corp., 123 A.D.3d 768, 770, 999 N.Y.S.2d 111 ).
Here, the defendants demonstrated that the plaintiff made numerous and significant corrections to his deposition testimony on his errata sheets. Such corrections sought to substantively change portions of the plaintiff's deposition testimony which would have been in conflict with his earlier testimony at his General Municipal Law § 50–h hearing on issues concerning the basis for the defendants' alleged negligence as alleged in the plaintiff's pleadings (see Horn v. 197 5th Ave. Corp., 123 A.D.3d at 770, 999 N.Y.S.2d 111 ). Moreover, the plaintiff's stated reasons that he “mis-spoke” and that he was clarifying his testimony were inadequate to warrant the corrections (see Ashford v. Tannenhauser, 108 A.D.3d at 736, 970 N.Y.S.2d 65 ; Shell v. Kone El. Co., 90 A.D.3d at 891, 935 N.Y.S.2d 132 ; Kelley v. Empire Roller Skating Rink, Inc., 34 A.D.3d at 534, 827 N.Y.S.2d 70 ).
The plaintiff's contention that the defendants' motion should have been denied due to their failure to annex the errata sheets as exhibits to their initial moving papers is without merit, since the plaintiff submitted a copy of the errata sheets as an exhibit to his opposition papers (see Long Is. Pine Barrens Socy., Inc. v. County of Suffolk, 122 A.D.3d 688, 691, 996 N.Y.S.2d 162 ) and, in any event, the defendants annexed a copy of the errata sheets as an exhibit to the reply affirmation of their counsel (see Avalon Gardens Rehabilitation & Health Care Ctr., LLC v. Morsello, 97 A.D.3d 611, 612, 948 N.Y.S.2d 377 ). Since no substantial right of the plaintiff was prejudiced thereby, it would have been an improvident exercise of the Supreme Court's discretion to not consider the defendants' motion on its merits on this ground (see CPLR 2001 ; Avalon Gardens Rehabilitation & Health Care Ctr., LLC v. Morsello, 97 A.D.3d at 612, 948 N.Y.S.2d 377 ).
Accordingly, the Supreme Court should have granted the defendants' motion to strike the errata sheets relating to the plaintiff's deposition testimony.