Did I Really Say That?

Under NY CPLR 3116, after a party receives a deposition transcript, the witness has an opportunity to make “changes in form or substance . . . at the end of the deposition with a statement of the reasons given by the witness for making them.” Although typically utilized to correct transcription errors, some plaintiffs use this statute as an opportunity to “clean up” problematic testimony. As the First Department decision in Banegas v Unique Gas Corp shows, it is critical that attorneys review and, if necessary, challenge all such changes.

In Banegas, plaintiff testified that she slipped on the driveway where cars entered and exited the station. However, when shown photographs of the location of her fall, plaintiff marked a spot in the street. Since the marked spot was not on their property, the defendant moved for summary judgment. After receiving the transcript, plaintiff clarified that she had marked the spot where she landed . Thus, she maintained that she slipped on the defendant’s driveway. As this change was made before the defendant filed its motion, summary judgment was denied.

When faced with a change to deposition testimony, an attorney should always carefully analyze the reason for, and effect of, the change. If the plaintiff failed to provide an adequate explanation – or if the change requires further questioning of the witness – a motion must be filed or you may be stuck with an improper “correction” of that party’s deposition testimony.

Thanks to Bill Kirrane for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com