A lady was crossing the street at the corner of East 151st Street and Morris Avenue in the Bronx in New York City. She tripped and fell on an uneven part of the roadway. She sued the City of New York and the Corporation who repaired the road.
The lady’s deposition was taken by the corporation during the discovery. During the deposition, the lady said that her trip and fall occurred on Morris Avenue. When the transcript of the deposition was given by the transcriber/stenographer for her to read it and sign it, the lady saw the mistake she made and made an errata sheet stating that her trip and fall occurred on East 151st street and not on Morris Avenue. She explained that she remembers having tripped and fallen just outside her apartment building but her apartment building is on a corner and it had two entrances. So she mistakenly testified on deposition that she had tripped and fallen on Morris Avenue when it truth, she really tripped and fell on East 151st street.
The lady submitted the errata sheet containing the correction and her explanation to the defendant corporation four months after making the corrections. During trial, the defendant corporation moved to suppress the errata sheet and to strike out the explanation. The motion was made by the corporation three years after the lady returned the transcript and the correction.
The corporation explains that it repaired the road on East 151st Street but not on Morris Avenue. The suppression of the errata sheet was vital to the corporation’s defense. It asserted that when the lady submitted her corrections to the corporation, it was four months delayed, in violation of the provisions of CPLR 3116 (a) which provides that the lady may make corrections on her deposition but she must make the corrections within 60 days from submission to her of the transcript for her comments. Since the errata sheet was submitted beyond the 60-day period provided for by CPLR 3116 (a), it should be suppressed.
The lady countered that the corporation itself was guilty of unreasonable delay. It should have moved to suppress the errata sheet long ago and not three years after she submitted the explanation.
The trial court denied the corporation’s motion. This denial of their motion was appealed by the corporation to the Supreme Court.
The issues to be determined are: whether or not the lady failed to timely comply with the CPLR 3116 (a); whether or not her delay in submitted the corrections constitute proper grounds to suppress the errata sheet; and whether or not the corporation’s delay in raising the issue of the timeliness of the corrections should be reason enough to deny its motion.
The plaintiff/witness has the right to make changes about personal injury in the form and substance of her testimony on deposition if the transcriber/stenographer made a mistake in rendering her testimony or if she simply made a mistake and wants to change her answer.
The law CPLR 3116 (a) imposes two requirements on making changes in form and substance to deposition testimonies. The first requirement is that the changes to the deposition must be entered at the end of the deposition transcript and the changes requested must be accompanied with reasons that constitute good cause for the changes.
The second requirement obligates the witness or deponent to submit the corrections she has made about the personal injury to the party who requested the deposition to be taken within a reasonable period of 60 days from the time the transcript of the deposition was given to her.
This 60-day period has not been strictly imposed by the Court especially when there is a good cause for the delay in transmitting the changes. Here, the lady did not give a sufficient explanation as to why it took her 120 days to transmit the changes to the corporation.
But, despite the delay of the lady of four months, the one who is in greater delay was the corporation. It should have promptly and diligently objected to the errata sheet within a reasonable time from the date it was submitted to it. The corporation took three years before moving for the suppression of the corrections.
Within that time of three years, the lady had reason to believe that the corporation had read the corrections and did not have any objections to her changes. She already relied on the corporation’s acceptance of the changes she had made because of the lapse of time.
The Court found the motion of the corporation as just another dilatory tactic and ruled that it cannot allow the corporation to benefit from its own negligent delay. The motion was denied.
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