Privilege and Deposition Transcripts

CPLR R. 3116

CPLR R. 3117

CPLR § 4503 Attorney

PJI 1:76

Ramirez v Willow Ridge Country Club, Inc., 2011 NY Slip Op 03714 (App. Div., 1st 2011)

To the extent plaintiff asserts the verdict was inconsistent, the argument is unpreserved since it was not raised before the jury was discharged (see Barry v Manglass, 55 NY2d 803 [1981]). 

Plaintiff's claim that the court improperly charged the jury pursuant to PJI 1:76 that an inference could be drawn from plaintiff's refusal to waive his attorney-client privilege and allow a former paralegal at the firm which represented plaintiff in his Worker's Compensation claim to testify for the defense is without merit (Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d 137, 141 [1983] ["it is now established that in civil proceedings an inference may be drawn against the witness because of his failure to testify or because he exercises his privilege to prevent another from testifying, whether the privilege is constitutional . . . or statutory"]).

Plaintiff also asserts that the court erred in precluding plaintiff's use of the EBT transcript of defendant's witness Alexander Jack — plaintiff's foreman — during cross-examination on the grounds that plaintiff failed to show that he complied with CPLR 3116. Specifically, CPLR 3116(a) provides that a deposition shall be submitted to the witness who can make changes. The witness must then sign the deposition under oath. If the witness fails to sign and return the deposition within 60 days, it may be used as fully as though signed. A failure to comply with 3116(a) results in a party being unable to use the transcript pursuant to CPLR 3117 (see Santos v Intown Assoc., 17 AD3d 564 [2005]; Lalli v Abe, 234 AD2d 346 [1996]). It is the burden of the party proffering the deposition transcript to establish compliance with CPLR 3116(a) (Pina v Flik Intl. Corp., 25 AD3d 772, 773 [2006]).

Here, the court properly precluded the use of Jack's unsigned deposition transcript during Jack's cross-examination inasmuch as plaintiff failed to establish that the transcript was sent to Jack and that he failed to return it within 60 days. Although at one point in his testimony Jack seems to state that he signed the deposition at his lawyer's office, upon further questioning, it appears that he was confused and was actually referring to taking an oath on the date the deposition was taken (see CPLR 3113[b]), rather than on a separate date when the transcript was sent to him for changes and signing pursuant to CPL 3116.

Although there is no time frame as to when a party should send a deposition transcript to a witness for compliance with CPLR 3116(a), a trial court need not adjourn a trial during the cross-examination of a witness so the that the party cross-examining the witness may comply with the section. In any event, since plaintiff does not specify any parts of the deposition that he would have used, any error would appear to be harmless.

Nor has plaintiff demonstrated that any of his other claims regarding the conduct of the trial court were so prejudicial as to deprive him of a fair trial. The rulings on admissibility of evidence were proper and, in any event, any error was harmless.

The bold is mine.  The privilege potion is probably the most interesting.

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