CPLR R. 3116

3116(a) use of transcripts

Greenman v 2451 Broadway Mkt., Inc., 2020 NY Slip Op 01962 [1st Dept. 2020]

The trial court erred in permitting defendants to use the transcripts of plaintiff’s and his nonparty wife’s depositions at trial, since the transcripts had never been served upon plaintiff and his wife in accordance with CPLR 3116(a) (Li Xian v Tat Lee Supplies Co., Inc., 170 AD3d 538 [1st Dept 2019]; Ramirez v Willow Ridge Country Club, 84 AD3d 452 [1st Dept 2011]). Defendants used the transcripts extensively, both on cross-examination and as direct evidence, and, given the centrality of the issue of credibility, the error cannot be regarded as harmless (see Rivera v New York City Tr. Auth., 54 AD3d 545, 548 [1st Dept 2008]).

The trial court further erred in permitting defense counsel to argue that the actual cause of plaintiff’s fall was the effect of the Valium he had been given earlier that day in connection with a medical visit, since no evidence had been offered as to the dose plaintiff was given, the length of time the Valium would have remained in his system after his medical procedure, or the effect the Valium would have had on his ability to ambulate at the time of his accident (see Kaminer v John Hancock Mut. Ins. Co., 199 AD2d 53 [1st Dept 1993]).

Interesting transcript

I haven't seen an unsigned transcript permitted to be used in this context

CPLR R. 3116 Signing deposition; physical preparation; copies
(a) Signing.

CPLR R. 3117

Boadu v City of New York, 2012 NY Slip Op 03581 (2nd Dept., 2012)

The Supreme Court properly considered the deposition transcripts submitted by the Transit Authority in support of its cross motion for summary judgment. Although unsigned, the deposition transcripts were certified by the reporter and the plaintiff did not raise any challenges to their accuracy. Thus, the transcripts qualified as admissible evidence for purposes of the cross motion (see Rodriguez v Ryder Truck, Inc., 91 AD3d 935, 936; Zalot v Zieba, 81 AD3d 935).

Relying on this admissible evidence, the Transit Authority established, prima facie, that the station agent did no more than furnish the police with information which, after an investigation, resulted in the alleged unlawful detention and arrest of the plaintiff. "[A] civilian complainant, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution" (Mesiti v Wegman, 307 AD2d 339, 340 [internal quotation marks omitted]; see Levy v Grandone, 14 AD3d 660, 661). However, in opposition to this prima facie demonstration of entitlement to judgment as [*2]a matter of law, the plaintiff, through his deposition testimony, raised a triable issue of fact as to whether the station agent "affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his own volition" (Mesiti v Wegman, 307 AD2d at 340 [internal quotation marks omitted]). Accordingly, that branch of the Transit Authority's cross motion which was for summary judgment dismissing the complaint insofar as asserted against it was properly denied.

An unsigned, but useful Deposition

CPLR R. 3116 Signing deposition; physical preparation; copies
(a) Signing.

Rodriguez v Ryder Truck, Inc., 2012 NY Slip Op 00769 (2nd Dept., 2012)

Contrary to the defendants' contentions, the unsigned but certified deposition of the plaintiff Juan Rodriguez, which was submitted in support of the plaintiffs' motion for summary judgment, was admissible under CPLR 3116(a), since the transcript was submitted by the party deponent himself and, therefore, was adopted as accurate by the deponent (see Ashif v Won Ok Lee, 57 AD3d 700). Additionally, although the plaintiffs initially failed to submit the certification page of the deposition of the defendant Derrick Thomas, they submitted it on reply in response to the defendants' arguments in opposition. Under the circumstances of this case, the late submission did not prejudice the defendants, and the Supreme Court should have considered the certification (see Mazzarelli v 54 Plus Realty Corp., 54 AD3d 1008; cf. Navarrete v A & V Pasta Prods., Inc., 32 AD3d 1003, 1004). Furthermore, although unsigned, as noted above, the transcript of Thomas's deposition was certified, and the defendants did not raise any challenges to its accuracy. Thus, it qualified as admissible evidence for purposes of the plaintiffs' motion for summary judgment (see Zalot v Zieba, 81 AD3d 935, 936; Bennett v Berger, 283 AD2d 374; Zabari v City of New York, 242 AD2d 15, 17). However, the uncertified and unsworn police report submitted by the plaintiffs in support of their motion was inadmissible (see Toussaint v Ferrara Bros. Cement Mixer, 33 AD3d 991, 992; Bates v Yasin, 13 AD3d 474; Lacagnino v Gonzalez, 306 AD2d 250).

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.

CPLR R. 3212 and R. 3116: proof, inadmissible at trial, but sufficient to defeat SJ

CPLR R. 3116 Signing
deposition; physical preparation; copies

(a) Signing.

CPLR R. 3212
Motion for summary judgment

Moffett v Gerardi, 2010 NY Slip Op 05990 (App. Div., 2nd, 2010)

"A certificate of acknowledgment attached to an instrument such as a
deed raises a presumption of due execution, which presumption, in a case
such as this, can be rebutted only after being weighed against any
evidence adduced to show that the subject instrument was not duly
executed" (Son Fong Lum v Antonelli, 102 AD2d 258, 260-261, affd
64 NY2d 1158; see Beshara [*2]v
Beshara, 51 AD3d 837, 838). Here, the defendant made a prima
facie showing of entitlement to judgment as a matter of law by providing
a copy of the notarized January 1998 deed which included a certificate
of acknowledgment (see Beshara v Beshara, 51 AD3d 837; Elder v Elder, 2 AD3d 671).

In opposition, the plaintiff submitted his own affidavit
contesting the signature on the deed, the deposition transcript of the
notary public who purportedly notarized the deed, and an unsworn report
of a handwriting expert. The plaintiff failed to establish that he had
sent the deposition transcript to the notary public for review pursuant
to CPLR 3116(a), thereby rendering the transcript inadmissible at trial (see Marmer v IF USA Express, Inc., 73 AD3d 868;
Martinez v 123-16 Liberty Ave. Realty Corp., 47
AD3d 901, 902; McDonald v Mauss, 38 AD3d 727, 728; Pina v Flik Intl. Corp., 25 AD3d 772; Scotto v Marra, 23 AD3d 543; Santos v Intown Assoc., 17 AD3d 564).
However, this failure did not preclude the Supreme Court from
considering the transcript in opposition to the motion for summary
judgment (see Friends of Animals v Associated Fur Mfrs., 46 NY2d
1065, 1068; Phillips v Kantor & Co., 31 NY2d 307; Franklin v 2 Guys From Long Pond, Inc., 50 AD3d
846; Kwi Bong Yi v JNJ Supply Corp., 274 AD2d 453; Silvestri
v Iannone, 261 AD2d 387; Zuilkowski v Sentry Ins., 114 AD2d
453). Generally, when opposing a motion for summary judgment, a party
must submit evidence in admissible form sufficient to raise a triable
issue of fact (see Zuckerman v City of New York, 49 NY2d 557). In
certain circumstances, "proof which might be inadmissible at trial may,
nevertheless, be considered in opposition to a motion for summary
judgment" (Zuilkowski v Sentry Ins., 114 AD2d 453), as long as
the party seeking to use such evidence provides an acceptable excuse for
the failure to tender the evidence in admissible form (see Friends
of Animals v Associates Fur Mfrs., 46 NY2d at 1068; Allstate Ins.
Co. v Keil, 268 AD2d 545), and the inadmissible evidence does not
provide the sole basis for the denial of summary judgment (see
Phillips v Kantor & Co., 31 NY2d 307).

Here, the plaintiff's excuse that it was his understanding that the
defendant, as the party who had noticed the deposition and hired the
court reporter, was forwarding a copy of the deposition transcript to
the notary public for review, was reasonable. Moreover, the notary
public's deposition testimony that the deed was not notarized in the
usual manner in which he notarized documents and, as a result, that he
would not testify that the signature on the deed belonged to the
plaintiff, along with the plaintiff's own affidavit that he did not sign
the subject deed, rebutted the presumption of the deed's validity as
created by the certificate of acknowledgment (see Alvarez v Prospect
Hosp., 68 NY2d 320; Hoffman v Kraus, 260 AD2d 435).
Accordingly, since there is a triable issue of fact, the Supreme Court,
upon reargument, should have adhered to its prior determination denying
the defendant's motion for summary judgment dismissing the complaint.

The bold and underline are mine.

CPLR R. 3212; 4518 Gaps in proof not enough. Records not admissible. Plus CPLR 3116(a): Deposition not signed

CPLR R. 3212 Motion for summary judgment

CPLR R. 4518 Business records

CPLR R. 3116 Signing deposition; physical preparation; copies

(a) Signing.

Shafi v Motta, 2010 NY Slip Op 03895 (App. Div., 2nd, 2010)

On their motion for summary judgment, the defendants had the burden of
establishing, by proof in admissible form, their prima facie entitlement
to judgment as a matter of law (see CPLR 3212[b]; Zuckerman v
City of New York, 49 NY2d 557, 561; Myers v Ferrara, 56 AD3d
78, 83). This burden may be satisfied only by the defendant's
affirmative demonstration of the merit of the defense, rather than
merely by reliance on gaps in the plaintiffs' case (see DeFalco v
BJ's Wholesale Club, Inc., 38 AD3d 824, 825; Cox v Huntington
Quadrangle No. 1 Co., 35 AD3d 523, 524; Pearson v Parkside Ltd.
Liab. Co., 27 AD3d 539; Mondello v DiStefano, 16 AD3d 637,
638). Here, the defendants submitted [*2]hospital
laboratory reports and records of the New York City Department of
Health and Mental Hygiene. As the Supreme Court concluded, however,
because these documents were neither certified nor authenticated, and
thus were not in admissible form, they could not be considered on the
motion (see CPLR 4518[c]; Banfield v New York City Tr. Auth.,
36 AD3d 732; Baez v Sugrue, 300 AD2d 519, 520; cf. Whitfield v
City of New York, 48 AD3d 798, 799). Moreover, the affirmation of
the defendants' attorney submitted with very brief excerpts of
deposition testimony was insufficient to establish the defendants'
entitlement to judgment as a matter of law (see Irving v Great Atl.
& Pac. Tea Co., 269 AD2d 358, 359; Cicolello v Limb, 216
AD2d 434). Inasmuch as the defendants failed to carry their burden,
denial of the motion was required without regard to the sufficiency of
the papers submitted in opposition (see Winegrad v New York Univ.
Med. Ctr., 64 NY2d 851, 853; Molina v Belasquez, 1 AD3d 489).

Marmer
v IF USA Express, Inc., 2010 NY Slip Op 04151 (App. Div., 2nd, 2010)

The defendants did not meet their prima facie burden of showing that the
plaintiff did not sustain a serious injury as a result of the subject
accident. Specifically, the defendants failed to show that the plaintiff
did not sustain a medically-determined injury or impairment of a
nonpermanent nature which prevented her from performing substantially
all of the material acts which constituted her usual and customary daily
activities for a period of not less than 90 days during the 180-day
period immediately following the subject motor vehicle accident, as
articulated in Insurance Law § 5102(d) (hereinafter the 90/180-day
category) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy
v Eyler, 79 NY2d 955, 956-957). In the plaintiff's bill of
particulars, she clearly set forth that, as a result of the subject
motor vehicle accident, she sustained, inter alia, a serious injury
under the 90/180-day category of Insurance Law § 5102(d). The affirmed
reports of the defendants' examining physicians did not specifically
relate any of their findings to this 90/180-day category of serious
injury (see Negassi v Royle, 65 AD3d 1311; Ismail v Tejeda, 65
AD3d 518; Neuberger v Sidoruk, 60 AD3d 650; Miller v Bah, 58
AD3d 815; Scinto v Hoyte, 57 AD3d 646). Further, the unsigned
deposition transcript of the plaintiff, which the defendants submitted
in support of their motion, did not constitute admissible evidence in
light of the defendants' failure to demonstrate that the transcript was
forwarded to the plaintiff for her review pursuant to CPLR 3116(a) (see
Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901; McDonald
v Mauss, 38 AD3d 727; Pina v Flik Intl. Corp., 25 AD3d 772; Santos
v Intown Assoc., 17 AD3d 564). Since the defendants [*2]failed to meet their prima facie burden, we
need not consider whether the plaintiff's opposition papers were
sufficient to raise a triable issue of fact (see Negassi v Royle, 65
AD3d 1311; Ismail v Tejeda, 65 AD3d 518; Neuberger v Sidoruk,
60 AD3d 650; Miller v Bah, 58 AD3d 815).

The bold is mine.

NYSBA, CPLR 3212 and CPLR 3116(a)

CPLR R. 3116 Signing
deposition; physical preparation; copies

(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.

David Horowitz has a great article in New York State Bar Association Journal about the use of unsigned deposition transcripts in summary judgment motions titled "Signature Required." As we all know, summary judgment must be supported by proof in admissible form. And generally, unsigned deposition transcripts are not proof in admissible form. Why? CPLR R. 3116(a), requires that the deposition transcript be signed by the witness. If that isn't done, the transcript may be admissible provided that the transcript was actually provided to the witness for his or her signature within 60 days of receipt. The rule is not without it's exceptions, however. For example, "When a party moving for summary judgment utilizes an unexectuted transcript of its party witness, thereby 'adopting' the contents…and the transcript is then relied on by the party opposing the motion, the transcript may be considered as proof in opposition by the opposing party." (quote is from the article. I have no idea how to cite to it). Another example is when it is used as a party admission. You'll have to read the article to get all the cites. If not for the cites, you should read it, just because.

Oh, ok, just one cite, Pina v. Flik Intern. Corp., 808 N.Y.S.2d 752 (App. Div., 2nd, 2007). There the Appellate DIvision makes it pretty simple. Either it's signed, or you show that you sent it to be signed. Otherwise, you're screwed:

The Supreme Court properly denied the defendants' motions for summary
judgment since they failed to submit sufficient evidence in admissible
form to establish their entitlement to judgment as a matter of law (see
Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The
defendants failed to show that the unsigned deposition transcripts of
various witnesses they submitted in support of their motions had
previously been forwarded to the relevant witnesses for their review
pursuant to CPLR 3116 (a). Hence, contrary to the defendants'
contention, they were not admissible (see Lalli v Abe, 234 AD2d
346 [1996]; Palumbo v Innovative Communications Concepts, 175
Misc 2d 156 [1997], affd 234 AD2d 346 [1998]; Connors, Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3116:1).

Yes, I know, there are exceptions, but generally, you will be screwed.

Compare Pina with St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co., 2010 NY Slip Op 00668 (App. Div., 2nd, 2010). In that case the defendant offered several unsigned EUO transcripts as evidence in support of its motion for summary judgment. Defendant offered them under the theory that (1) they weren't being offered for their truth and (2) they were admissions. The Appellate Division found that defendant's cross motion should be have granted, reversing the lower court. The Appellate Term, twice now, has held that assignors are not parties. I read defendant's briefs, but don't quite understand just how defendant thought the transcripts were relevant if not offered for their truth. JT appears equally confused. And the Appellate Division's decision offers zero insight. The whole thing is weird.

So, in conclusion, make sure to read the article. It was the first thing I turned to when I opened the magazine. I'm a nerd. Fat too. God help me.

[edit] Sorry, I forgot to add something. In the very beginning of the article Mr. Horowitz briefly discusses the history of summary judgment, including the initial fight as to whether, and I'm paraphrasing here, it encroached on the right to trial by jury. The issue of whether summary judgment is constitutional, it appears, is not a new argument. If anyone is interested, there is a great Law Review article on that very topic. I posted it back in September with links to the articles.

CPLR § 304; §403

CPLR § 304. Method of commencing action or special proceeding

CPLR § 403. Notice of petition; service; order to show cause

(d) Order to show cause.
The court may grant an order to show cause to be served, in lieu of a
notice of petition at a time and in a manner specified therein.

Matter of Ruine v Hines, 2008 NY Slip Op 09928 (App. Div., 1st)

The mode of service provided for in an order to show cause is jurisdictional and must be

literally followed (see CPLR 304, 403[d]; European Am. Bank v Legum, 248 AD2d 206 [1998]). Petitioner's pro se status is not an excuse for noncompliance (see Goldmark v Keystone & Grading Corp, 226 AD2d 143 [1996]).

The bold is mine.

CPLR R. 3116

Rule 3116. Signing deposition; physical preparation; copies

(a) Signing.

Ashif v Won Ok Lee, 2008 NY Slip Op 09936 (App. Div., 2nd)

Contrary to the contention of the third-party defendants Mohmmd
Chowdhury and Domenico Mancini (hereinafter the appellants), the
unsigned deposition transcript of the third-party defendant Rehmat
Khan, which Khan submitted in support of his motion for summary
judgment, and which was relied upon by the defendant third-party
plaintiff, Won Ok Lee, in opposition to the appellants' cross motion
for summary judgment, was admissible under CPLR 3116(a), since that
transcript was submitted by the party deponent himself and therefore
was adopted as accurate by Khan, as the deponent (cf. McDonald v Mauss, 38 AD3d 727; Pina v Flik Intl. Corp., 25 AD3d 772, 773; Scotto v Marra, 23 AD3d 543). Similarly, the MV-104 accident report prepared by Khan was properly [*2]considered as a party admission (see Fox v Tedesco, 15 AD3d 538; Castellano v Citation Cab Corp., 35 AD2d 842).

The bold is mine.