CPLR 3117(a)(2)-(a)(3)

CPLR 3117. Use of depositions

International Fin. Corp. v Carrera Holdings Inc., 2018 NY Slip Op 01541 [1st Dept. 2018]

The court erred in concluding that Carrera S.P.A.'s principal Vivek Jacob's deposition testimony was admissible under CPLR 3117(a)(2), which permits deposition testimony of an officer of a party for use "by any party who was adversely interested when the deposition testimony was given or who is adversely interested when the deposition testimony is offered in evidence." Carrera, which offered the testimony in evidence, was not a party adverse to Jacob at the time when he was deposed or at trial. Nevertheless, the court correctly concluded that Jacob's testimony was admissible under CPLR 3117(a)(3)(I) because he was deceased by the time of trial. To the extent portions of Jacob's testimony were not based on his personal knowledge of the Tajik government's interference with operations at Giavoni (see Wathne Imports, Ltd. v PRL USA, Inc., 125 AD3d 434 [1st Dept 2015]; Eustaquio v 860 Cortlandt Holdings, Inc., 95 AD3d 548 [1st Dept 2012]), there is other evidence to support those facts, and plaintiff was not prejudiced by any error in admitting that testimony (see CPLR 2002).

Plaintiff waived any objection to defendants' failure to produce relevant financial documents, the existence of which it was aware of as early as 2009 (well before trial in 2015), by filing its note of issue and certificate of readiness (see Fernandez v City of New York, 84 AD3d 595 [1st Dept 2011]).

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.

3117(a)(2) Use of Deposition at trial

CPLR R. 3117 Use of depositions

Novas v Zuckerman, 2012 NY Slip Op 02271 (1st Dept., 2012)

CPLR 3117(a)(2) provides that "so far as admissible under the rules of evidence," a party's deposition "may be used for any purpose by any party who was adversely affected when the deposition testimony was given or who is adversely interested when the deposition testimony is offered in evidence." However, although deposition testimony is generally admissible under CPLR 3117(a)(2), that section does not constitute an "absolute and unqualified right to use the deposition at any time during the course of trial" (Feldsberg v Nitschke, 49 NY2d 636, 643 [1980]). The trial court retains discretion concerning the admissibility of such evidence and its exercise of discretion "is not reviewable save for a clear abuse of discretion" id.

Here, the trial court providently exercised its discretion in denying plaintiff's application to introduce into evidence portions of Dr. Zuckerman's deposition testimony. The testimony at issue concerned the necessity of full-length and/or standing leg X rays to measure plaintiff's joint-line on his knee. Contrary to plaintiff's contention, the proffered testimony would not have rebutted the testimony of defendant's expert, who only testified as to the amount of femoral bone removed. The expert did not testify as to measuring the joint line, nor the type of X rays needed to measure the joint line. Moreover, the preclusion of the testimony was not prejudicial to plaintiff's case, since the testimony of defendant's expert was based on X rays that were already in evidence (see e.g. Gogatz v New York City Tr. Auth., 288 AD2d 115, 116 [2001]).

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. 3117 and the Missing Witness Charge

CPLR R. 3117 Use of depositions
(a) Impeachment of witnesses; parties; unavailable witness
(4)  the deposition of a person authorized to practice medicine may be used by any party without the necessity of showing unavailability or special circumstances, subject to the right of any party to move pursuant to section 3103 to prevent abuse

Lauro v City of New York, 2009 NY Slip Op 08186 (App. Div., 2nd, 2009)

Additionally, contrary to the defendants' contentions, the Supreme Court properly gave a missing witness instruction (see Taveras v Martin, 54 AD3d 667; Brown v City of New York, 50 AD3d 937). " [W]hen a doctor who examines an injured plaintiff on the defendant's behalf does not testify at trial, an inference generally arises that the testimony of such witness would be unfavorable to the defendant. The defendant may defeat this inference by demonstrating that the testimony would be merely cumulative, the witness was unavailable or not under the defendant's control, or the witness would address matters not in dispute'" (Hanlon v Campisi, 49 AD3d 603, 604, quoting Brooks v Judlau Contr., Inc., 39 AD3d 447, 449, revd 11 NY3d 204). Here, the defendants failed to defeat the inference (see Taveras v Martin, 54 AD3d 667; Brown v City of New York, 50 AD3d 937).

How do you go about getting the charge.  Taveras is instructive,

The Supreme Court did not err in granting the defendant's request for a missing-witness charge for Leo F. Taveras. A party seeking a missing-witness charge must "promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call him to testify" (People v Gonzalez, 68 NY2d 424, 427 [1986]). As the party opposing the missing-witness charge, the appellant failed to demonstrate that Leo F. Taveras was "unavailable, not under [his] control, or that [his] testimony would be cumulative" (Adkins v Queens Van-Plan, 293 AD2d 503, 504 [2002]). Leo F. Taveras was the operator of the vehicle in which the appellant was a passenger and he is also the appellant's brother. Thus, it is clear that Leo F. Taveras is favorably disposed to the appellant and under his control (see People v Marsalis, 22 AD3d 866, 868-869 [2005]). The appellant failed to demonstrate that Leo F. Taveras remained ill after his hospital release or was otherwise unavailable (compare People v Turner, 294 AD2d 192 [2002]).

And bringing it on home is Brown,

Contrary to the defendants' contention, the Supreme Court properly granted the plaintiffs' request for a missing witness charge with respect to the defendant Julio A. Torro, the driver of the vehicle that allegedly struck the van of the injured plaintiff Joe S. Brown. Torro, who at all relevant times was represented by counsel, and who had previously given deposition testimony, inexplicably failed to appear at the trial to testify. A jury may, but is not required to, draw the strongest inference that the opposing evidence permits against a party who fails to testify at trial (see Crowder v Wells & Wells Equip., Inc., 11 AD3d 360, 361 [2004]; Farrell v Labarbera, 181 AD2d [*2]715, 716 [1992]; see also Noce v Kaufman, 2 NY2d 347, 353 [1957]).
What happens in cases where a party takes the testimony of a non-treating doctor, perhaps a IME doctor or a peer review doctor, and uses that deposition at trial under CPLR R. 3117(a)(4)?  And assume the doctor is available to testify.  And of course, unavailable doesn't mean that the doctor might have something better to do that day.  What then?  Get your missing witness charge (PJI 1:75).  To sort of conclude:  Can you use the deposition?  Probably.  Can the other side get a missing witness charge?  Probably.  The next question is:  Is it worth it?  I'll get into that in a minute.

*intermission* Or, for the few no-fault types who read this blog, consider the case of the re-peer. */intermission*

A couple of months ago I tried to do some research on 3117(a)(4).  I was more or less trying to understand the impetus behind the provision.  As it turns out, I'm terrible at researching this.  I had a research librarian trying to help me out and I really couldn't get anything on it.  That said, I'm pretty sure it is a patient treating mechanism, not a money saving mechanism.  The only reason to have a rule that allows for doctors' depositions to be used at trial is to keep them out of court and in their offices, treating patients.  Lately, a few insurance companies have been using it as a money saving mechanism.  Have one doctor in their (ins co lawyer's) office all day doing depositions for various cases–the doctors get paid a fixed (lower) rate, and the insurance companies don't have to pay the doctors to appear at trial.  At trial, the insurance company lawyer reads the deposition into the record.  There is no doubt that CPLR R. 3117(a)(4) is being used as a money saving mechanism.  From experience, I can tell you that the doctors are available to testify.  There are days where they are in court to testify on over five cases for various insurers.  Do I blame them?  No, everyone needs to make a living. The point is, they aren't treating patients.  The depositions aren't allowing them to treat more patients.  They still come to court and testify on cases where depositions weren't held.

Like I said, and I could be wrong (but I doubt it) CPLR R. 3117(a)(4) was not intended to be a money saving mechanism.

Finally, and I alluded to this before, is this something a party really wants to do?  Depositions are a completely different animal than trials.  It's part of discovery.  Accordingly, there is a lot of leeway.  All those questions that you could never get away with at trial; you can ask them.  If the insurance company refuses to allow their doctor to answer and bust the deposition, well, that will be their problem.  Th
ere is a lot of interplay between IME doctors, Peer Review doctors, the vendors that work in-between the doctors and the insurance companies, and the insurance companies.  Do you really want these questions asked?  Do you want the answers memorialized?  I'd guess no.  But, I could always be wrong.  In the end, it could wind up costing far more than it would save.

Finally, using this rule is a ballsy move.  One that most parties wouldn't make but for desperation.  We can all agree that a jury wouldn't like it.  Would a Judge?  Would anyone feel comfortable telling the trier of fact, especially one that went to law school, and one who is smarter than your average Joe that, "Yes your honor, I didn't think it important that you see the witness.  No, you don't have to worry about the witness' demeanor.  It's fine, trust me".  And if the other side asked for a missing witness charge, how would you respond?

Something to think about.

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CPLR R. 3117

CPLR R. 3117 Use of depositions

In Rivera v New York City Tr. Auth., 2008 NY Slip Op 06684 (App. Div., 1st), the First Department addressed the admissibility of 50(h) transcripts in a relatively unusual set of circumstances.  Initially there were several plaintiffs, several 50(h)s, and several separate lawsuits.  Nine of those lawsuits were consolidated for trial and by the time the trial went forward, six of the plaintiff's had settled.  During the trial, the court allowed defense counsel to read parts of all nine 50(h) transcripts into evidence.  Plaintiff objected, arguing that that the transcripts were inadmissible hearsay; none of the plaintiffs received notice of the other's 50(h) and none of the plaintiffs were represented by counsel.

The Court agreed, basing its opinion on CPLR R. 3117(a)(2). Without deciding whether it allowed the use of depositions where there was no notice and where an attorney wasn't present, the court found the transcripts to be inadmissible:

CPLR 3117(a)(2) provides that "the deposition testimony of a party or of any person who was a party when the testimony was given . . . may be used [at trial] for any purpose by any party who was adversely interested when the deposition testimony was given or who is adversely interested when the deposition testimony is offered in evidence." The statute expressly provides, however, that the use of a deposition is authorized only "so far as admissible under the rules of evidence" (CPLR 3117[a] [emphasis added]). Thus, even assuming (without deciding) that CPLR 3117(a)(2), unlike CPLR 3117(a)(3) (setting forth the conditions for the use of "the deposition of any person"), permits the use of the deposition of a party against another party who did not receive notice of the deposition and was not present or represented at its taking (see Bianchi v Federal Ins. Co., 142 Misc 2d 82 [Sup Ct, NY County 1988]; but see Andrusziewicz v Atlas, 13 AD3d 325 [2004]; Siniscalchi v Central Gen. Hosp., 80 AD2d 849 [1981]; Weinstein-Korn-Miller, NY Civ Prac ¶ 3117.05 [2d ed]), deposition testimony otherwise satisfying the requirements of CPLR 3117(a)(2) still is not admissible unless it is shown that, as to each party against whom the deposition is to be used, it falls within an exception to the rule against hearsay (see United Bank v Cambridge Sporting Goods Corp., 41 NY2d 254, 264 [1976]). No such showing was made here.

While the deposition testimony of each plaintiff was admissible against that plaintiff as an admission (see Prince, Richardson on Evidence, §§ 8-201, 8-202 [Farrell 11th ed]), the status of such testimony as an admission of the plaintiff who testified did not render it admissible against the other plaintiffs (id. § 8-203; see also Claypool v City of New York, 267 AD2d 33, 35 [1999] [GML § 50-h testimony was not admissible at trial against parties who "were not notified and were not present at the hearing"])[FN1]. Neither were the depositions admissible under the hearsay exception for declarations against the declarant's interest, since none of the deponents was shown to have been unavailable to testify at trial (see Prince, Richardson, supra, § 8-404). Further, since none of the deponents testified at trial before his or her deposition was read into evidence, the deposition testimony was not admissible as a trial witness's prior inconsistent statement (cf. Letendre v Hartford Acc. & Indem. Co., 21 NY2d 518 [1968]; Campbell v City of Elmira, 198 AD2d 736, 738 [1993], affd 84 NY2d 505 [1994]; Prince, Richardson, supra, § 8-104).

All the bold is mine.