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EBT transcript invalid because it was not mailed to plaintiff (CPLR 3117)May 15, 2010

Marmer v IF USA Express, Inc., 2010 NY Slip Op 04151 (2d Dept. 2010)

“Further, the unsigned deposition transcript of the plaintiff, which the defendants submitted in support of their motion, did not constitute admissible evidence in light of the defendants’ failure to demonstrate that the transcript was forwarded to the plaintiff for her review pursuant to CPLR 3116(a)(see Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901; McDonald v Mauss, 38 AD3d 727; Pina v Flik Intl. Corp., 25 AD3d 772; Santos v Intown Assoc., 17 AD3d 564).”

This decision is wrong for a few reasons.  First, the cases that  the Appellate Division cites to involve non-party depositions.  Second, the law as it relates to party depositions, as the Second Department previously held in R.M. Newell Co., Inc. v. Rice, 236 AD2d 843 (2d Dept. 1997), states the following:

“The court properly considered Richard Newell’s deposition in support of defendants’ motions for summary judgment. The transcripts were certified as accurate by the court reporter, who sent them to the witness for his review and signature. Thus, pursuant to CPLR 3116(a), the deposition is usable as though signed. In any event, any statutory proscription against the use of a transcript as a “deposition” would not preclude its use as an admission of plaintiff’s controlling principal. CPLR 3212(b) states that “written admissions” may be submitted on a summary judgment motion. Further, rules of evidence provide for admissibility of admissions of an opposing party regardless of whether they are in the form of a deposition. Thus, irrespective of whether it qualified as a “deposition” under CPLR 3116, the transcript constituted proof in admissible form ( see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).”

Can an admission not be used against a plaintiff on a summary judgment motion due to the failure to comply with CPLR 3116?  Has this rule now changed?  Does this make sense?

5 Responses

  1. Anonymous says:

    Q. 1: an admission can be used. A deposition that fails to comply with 3116 cannot. That’s why we have the goddamn statute. read on Mc-T
    Q. 2: Newell changed the rule and now we’re back on track
    Q. 3: No it does not make sense. The decision in Newell stinks. It is stupid and obviously motivated by something extrinsic to the legal issue although not the case.

    Once again J.T. you have an aversion to the CPLR. If you like I can read it to you before you go to sleep at night. It really is a masterpiece of logic that far outshines the FRCP.

    Did the App Term guest host the division on the day Newell was decided. CPLR 3116(a) cannot be undone by a court’s opinion — unless a court were to hold it unconstitutional. The Courts cannot write legislation. Either can you. Let’s look at the langauge of that Jewell — Newell:

    “In any event, any statutory proscription against the use of a transcript as a “deposition” would not preclude its use as an admission [APPLES AND ORANGES] of plaintiff’s controlling principal.”

    The Court is saying that the admission exception covers depositions. No. Depositions are separate although they may contain admissions. Depositions are statutory and have a set of statutory rules that remove them from the common law. Follow the rules if you want to use the depo. There are no real statutory rules of evidence in NY beyond the Business Record Rule and rules regarding electronic signatures.

    “CPLR 3212(b) states that “written admissions” may be submitted on a summary judgment motion.”

    “WRITTEN ADMISSIONS” — THAT MEANS YOU WRITE THEM IN HAND USING A PEN, PENCIL, COMPUTER ETC — MADE AND/OR AT LEAST SIGNED BY THE PERSON MAKING THE STATEMENT/NOT TRANSCRIBED DEPOSITIONS WHEREIN A COURT REPORTER MAY NOT HAVE ACURATELY TRANSCRIBED WHAT WAS SAID FOR A VARIETY OF REASONS INCLUDING DEAFNESS –THAT’S WHY YOU HAVE 3116 SO THIS CAN BE CHECKED BY THE DEPONENT BEFORE — USE OF THE DEPO —

    know why you have a rule J.T. before commenting

    “Further, rules of evidence provide for admissibility of admissions of an opposing party regardless of whether they are in the form of a deposition”

    WHAT RULES/SHOW ME THEM/I HAVE A STATUTE. Besides the transcript is a second layer of hearsay. You have to bring in the Court reporter to testify as to what was stated. That is one layer of hearsay covered by the admission exception.

    “Thus, irrespective of whether it qualified as a “deposition” under CPLR 3116, the transcript constituted proof in admissible form …”

    No it most certainly did not. It was a depostion governed by statutory rules that had to be followed. THAT’S WHY WE HAVE THE GODDAMNED STATUTE.

    J.P. has the App Term annointed you with the ability to re-write the CPLR. Once they did it with Notices to Admit maybe they felt they could pass the torch onto you.

    This is not a plaintiff/defendant thing. I could give a damn. I represent the people that pay me or in many cases the causes I believe in for the heck of it. [I don’t get paid when I sue the A.G. or the Dept of Ins. I do it for fun.] I certainly don’t believe in Plaintiffs as a group.

    We have rules of evidence because people are easily swayed by B.S. Look at the “birther movement” and all the people that thought the “K” on Snapple meant “KKK” instead of Kosher.

    So, J.T., we have these well crafted rules to keep B.S. away from people — so they cannot consider it. Let’s face it — dare I say: People are dumb. Look who they vote for.

    And J.T. we have huge classes of B.S. You know the biggest class J.T.. Hearsay. That’s right J.T. That festering sore known as hearsay. Because you can’t trust what people say. They lie. They’re stupid. We want them to say it in court so that they can be subjected to the Zuppa cross and the jury can see them for what they are — dumb, B.S., liars. Juries are good at detecting the traits they possess.

    Now I know this hurts given the fact that your clients think newspaper clippings are evidence. But let us not destroy the law for our clients. It’s all we have J.T. I don’t see you in medicine. Digging ditches. At McDonalds like Kevin Spacey in American Beauty. And when no fault is gone where will you be J.T.

    I worry for you.

    You know cases brought in Supreme Court bypass the App Term and go to the Div that just corrected this obscure Newell case for probably the millionth time without mentioning it.

    • JT says:

      I did not realize that the admissibility of a deposition could stir up such raw emotion. Yet, I found this post quite interesting for many reasons. But, I am going to answer this one question that this writer asked:

      “Now I know this hurts given the fact that your clients think newspaper clippings are evidence. But let us not destroy the law for our clients. It’s all we have J.T. I don’t see you in medicine. Digging ditches. At McDonalds like Kevin Spacey in American Beauty. And when no fault is gone where will you be J.T.”

      1) I never ever tried to put newspaper clippings into evidence. I cannot speak for what other counsel may have done, and I will not even go there.

      2) You do not want me operating on people or engaging in the treatment and diagnosis of any diseases.

      3) I do not dig ditches – it never was my thing.

      4) Forget McDonalds and Kevin Spacey. I am more like Shack at Taco Bell.

      5) When no-fault is gone, I will be alright. I have a general practice besides no-fault. Remember, one who fails to diversify may find himself on the street one day.

      6) Do not worry about me. But, I do appreciate the thought.

      Lastly, how did an Appellate Division case construing CPLR 3116(a) invite a discussion on the workings of the Appellate Term?

  2. Raymond Zuppa says:

    J.T. I said you don’t dig ditches. You are smart. I know that. You can do whatever you want in law. But what of the others J.T. What of the others. (Ssshhh … J.T. just between you and me … I have boxes of cases full of motions stuffed with newspaper clippings — Fortune Magazine’s Boris article is a biggie)

    As to the App Term I would have expected such a decision from the them but in a No Fault case. Here is the driving force behind this common thread. It appears that courts — and they may be justified in their feelings — have grown a bit weary of no fault. I believe at one point the defendant insurance companies bore the brunt for not paying. Now I believe its the Plaintiff providers who are bearing it for billing.

    Go figure. Love you J.T. Thanks for having me.

  3. 2) As long as your practice is limited to lobotomies, I approve.
    5) Such are the perils of being a one trick pony. It’s something most of us grapple with.

    • JT says:

      I think before electric shock treatment and now some of the great psychotropic medications that are now out there, lobotomies represented the proper standard of care in that type of scenario.

      As to the second comment, I have personally seen the perils of being a one-trick pony. It does not seem wise.

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