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Motion to Strike Errata Sheet “Correcting” Substantive Discrepancies in Deposition Testimony Should Have Been Granted

The Second Department reversed Supreme Court and dismissed the complaint.  In her deposition plaintiff testified at length about where she tripped and fell but identified a very different location from that described in the complaint.  Plaintiff then sought to “correct” the “errors” in the deposition transcript by executing an errata sheet:

Notwithstanding the detailed, consistent, and emphatic nature of the plaintiff’s deposition testimony regarding the location of her accident, she subsequently executed an errata sheet containing numerous substantive “corrections” which conflicted with various portions of her testimony and which sought to establish that she actually fell at 197 Fifth Avenue, not 140 Fifth Avenue. The only reason proffered for these changes was that, prior to her deposition, she was shown photographs of 140 Fifth Avenue that mistakenly had been taken by an investigator hired by her attorney, and that she thereafter premised her testimony on her accident having occurred at the location depicted in those photographs. The defendants … moved, to strike the errata sheet and for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court denied the motions. We reverse.

Contrary to the determination of the Supreme Court, the plaintiff failed to provide an adequate reason for the numerous, critical, substantive changes she sought to make in an effort to materially alter her deposition testimony (see CPLR 3116[a]…). Horn v 197 5th Ave Corp, 2014 NY Slip Op 08605, 2nd Dept 12-10-14

 

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