Understanding Errata Sheets and Credibility Issues in New York Depositions

An errata sheet can affect a summary-judgment motion, but a changed answer does not guarantee a trial. In Yefet v Shalmoni, the court considered the correction together with expert evidence about a missing handrail.

Still current (September 2026): CPLR 3116(a) still gives the witness 60 days from submission of the transcript to sign it and return it with any changes and the reasons for them; the decision discussed here is read against that text. For today’s deposition practice see preparing for a car accident deposition (EBT) in New York.

The case: Yefet v Shalmoni

Yefet v Shalmoni, 81 AD3d 637, 2011 NY Slip Op 00677, was decided February 1, 2011, by the Appellate Division, Second Department.

The action concerned injuries and a death following a fall from an exterior staircase. The plaintiff did not know what caused the decedent to fall. Supreme Court initially dismissed the complaint on summary judgment.

The Second Department reversed. The plaintiff’s opposition included her errata sheet and an expert affidavit concerning a missing segment of handrail at the top of the staircase.

Together, that evidence raised a factual issue about whether the missing handrail was a proximate cause of the injuries. The conflict between the deposition and correction presented a credibility question the motion could not resolve.

The court rejected a separate Noseworthy argument because the defendants knew no more about the cause of the fall than the plaintiff. The reversal rested on the opposition evidence, not a reduced burden under that doctrine.

Jason Tenenbaum’s original February 2011 observation

I havent seen this one in awhile and it is noteworthy because the law seems to presume that testimony contradicting a deposition transcript is insufficient to rebut the deficiencies found in the EBT transcript.

That observation identifies the tension in the case: a correction can contradict an earlier answer, yet the record may still present a genuine factual dispute. Yefet does not make every correction sufficient.

CPLR 3116(a): the deadline and the reason for each change

CPLR 3116(a) permits changes in form or substance, entered at the end of the deposition with the witness’s reasons. The deposition is then signed before an officer authorized to administer an oath.

The statutory period is 60 days after submission to the witness for examination, not 30 days after the deposition or after the transcript becomes available.

If the witness fails to sign and return the deposition within 60 days, it may be used as fully as though signed. The rule also bars witness changes more than 60 days after submission for examination.

Preserve the transmittal record and discuss the deadline promptly with counsel. Do not assume the clock begins whenever the witness chooses to open or read the transcript.

Why Yefet is not a right to rewrite testimony

The reason for a correction and its effect on the disputed facts matter. The statute’s permission to make changes does not require a court to accept an inadequately explained change to critical testimony.

In Torres v Board of Education, 137 AD3d 1256 (2d Dept 2016), the court struck significant corrections involving negligence allegations and earlier hearing testimony.

The explanations that the witness misspoke or was clarifying his testimony were inadequate there. Torres supplies an important limit to read alongside Yefet; it should not be described as overruling it.

For another fact-specific result, see the firm’s Pollina discussion of the deposition transcript and errata sheet. That case involved evidence of an earlier fall and notice to a restaurant employee.

Reviewing the transcript with counsel

Keep the original transcript, proposed corrections, reasons and submission dates together. For each proposed change, identify:

• The page and line of the original answer.
• The replacement wording and the actual reason for it.
• Whether it changes a fact central to liability or damages.
• Any document or other testimony relevant to the explanation.
• Whether the correction has been challenged and what relief is sought.

A witness should correct the record accurately, not replace an inconvenient answer with a preferred version. Counsel can assess the procedural requirements and how both versions affect the case.

Connect to the Encyclopedia

• Topic hub: Summary Judgment (CPLR 3212)
• Discovery and the timing of summary-judgment motions
• CPLR 3212(f): when further discovery does not justify denying a motion
• New York civil-procedure references
• What to Expect at Your Car Accident Deposition in New York (2025)

For a specific deposition dispute, request a Free Case Review and identify the proceeding and any approaching deadline. Do not post testimony or case records in a public comment.

Last reviewed: September 2026. The original 2011 observation remains historical; the case discussion and statutory references have been checked separately.