New York City Debt Collection Defense Attorney

Take a Deposition? Make sure to Have the Deponent Sign It!

Some procedural rules you're just not aware of until you get burned.

CPLR 3116 is such a rule. This rule in essence states that if you don't produce proof that you forwarded a deposition transcript to the deponent (the witness deposed) for signing, the transcripts are not admissible evidence and cannot support your summary judgment motion. And since it takes at least 60 days to elapse if the deponent decides not to alter testimony, you can easily run afoul of your 120-day deadline if you disregard this rule.

I remember now that I did not forward a non-party EBT transcript to a neonatologist for signature. And I'm using that transcript in support of a cross-motion for summary judgment. Now a loophole exists to admit such unsigned testimony as an admission against the deponent; however I'm using it in my case as evidence of the neonatologist's employee status at a hospital. Can I argue that his testimony serves as an admission against the hospital as an ostensible principle?

Here's the statute

CPLR § 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.

(b) Certification and filing by officer. The officer before whom the deposition was taken shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. He shall list all appearances by the parties and attorneys. If the deposition was taken on written questions, he shall attach to it the copy of the notice and written questions received by him. He shall then securely seal the deposition in an envelope endorsed with the title of the action and the index number of the action, if one has been assigned, and marked “Deposition of (here insert name of witness)” and shall promptly file it with, or send it by registered or certified mail to the clerk of the court where the case is to be tried. The deposition shall always be open to the inspection of the parties, each of whom is entitled to make copies thereof. If a copy of the deposition is furnished to each party or if the parties stipulate to waive filing, the officer need not file the original but may deliver it to the party taking the deposition.

(c) Exhibits. Documentary evidence exhibited before the officer or exhibits marked for identification during the examination of the witness shall be annexed to and returned with the deposition. However, if requested by the party producing documentary evidence or on exhibit, the officer shall mark it for identification as an exhibit in the case, give each party an opportunity to copy or inspect it, and return it to the party offering it, and it may then be used in the same manner as if annexed to and returned with the deposition.

(d) Expenses of taking. Unless the court orders otherwise, the party taking the deposition shall bear the expense thereof.

(e) Errors of officer or person transcribing. Errors and irregularities of the officer or the person transcribing the deposition are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.