Key Takeaway
When deposition testimony conflicts with errata sheet corrections, courts must deny summary judgment motions due to unresolved credibility issues requiring trial resolution.
This article is part of our ongoing discovery coverage, with 102 published articles analyzing discovery issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
In personal injury litigation, depositions serve as critical discovery tools where witnesses provide sworn testimony under oath. However, complications arise when a deponent later attempts to change their testimony through an errata sheet—a document that allows witnesses to correct errors in their deposition transcript. This creates a legal dilemma: which version should courts consider authoritative?
The tension between original deposition testimony and subsequent corrections presents unique challenges, particularly when defendants seek summary judgment motions. Courts must determine whether these conflicts can be resolved as a matter of law or whether they create genuine issues of material fact requiring jury determination.
When substantial discrepancies exist between a witness’s original sworn testimony and their errata sheet corrections, the credibility of both versions becomes questionable. This credibility determination is typically reserved for juries, not judges ruling on pre-trial motions. The legal system recognizes that factual disputes involving witness credibility cannot be properly evaluated without the benefit of a full trial where witnesses can be cross-examined and their demeanor observed.
Jason Tenenbaum’s Analysis:
Pollina v Oakland’s Rest., Inc., 2012 NY Slip Op 03991 (2d Dept. 2012)
“We note that the conflict between the plaintiff’s original deposition testimony and the correction sheet “raises an issue of credibility which may not be resolved on a motion for summary judgment” (Williams v O & Y Concord 60 Broad St. Co., 304 AD2d 570, 571; see Breco Envtl. [*2]Contrs., Inc. v Town of Smithtown, 31 AD3d 359, 360; Surdo v Albany Collision Supply, Inc., 8 AD3d 655).”
Key Takeaway
The Pollina decision establishes an important principle in New York civil litigation: when deposition testimony conflicts with errata sheet corrections, courts cannot resolve these credibility issues through summary judgment motions. Instead, these disputes must proceed to trial where a jury can evaluate the witness’s credibility and determine which version of the testimony to believe. This ruling protects the right to jury trial in cases involving disputed facts.
Related Articles
- NY EBT Venue Rules: When Courts Grant Undue Hardship Exceptions for Depositions
- Appellate Term holds CPLR 3212(f) relief is inappropriate under three separate circumstances
- The failure of an assignor to appear for an EBT is not a basis for a 3126 sanction against the assignee
- Remote Depositions for International Parties: Legal Precedent from Long Island and NYC Courts
- New York No-Fault Insurance Law
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Discovery Practice in New York Courts
Discovery is the pre-trial process through which parties exchange information relevant to the dispute. In New York, discovery practice is governed by CPLR Article 31 and involves depositions, interrogatories, document demands, and physical examinations. Disputes over the scope of discovery, compliance with demands, and sanctions for noncompliance are frequent in both no-fault and personal injury cases. These articles analyze discovery rules, court decisions on discovery disputes, and strategies for effective discovery practice.
102 published articles in Discovery
Keep Reading
More Discovery Analysis
Another Discovery
Appellate Term ruling on discovery objections shows courts won't disturb trial court discretion when defendants fail to timely object within CPLR's 20-day period.
May 22, 2021Deposition rulings
New York appellate court clarifies that deposition rulings cannot be appealed as of right, even when made through formal motion practice rather than during examination.
Sep 25, 2020EBT granted
Appellate court reverses denial of EBT motion against radiology provider, emphasizing insurers' right to examine medical professionals in necessity disputes.
Dec 26, 2017Difference between condition order and standard order
Learn the crucial difference between conditional and standard discovery orders in NY litigation and how they affect case strategy and deadlines.
Feb 12, 2015Certificate of readiness that says discovery is outstanding is deemed a nullity
Appellate Division rules certificate of readiness stating discovery is outstanding creates a nullity, allowing unlimited time to strike note of issue in NY courts.
Jun 20, 2013An interesting discovery case involving the right to obtain alcohol treatment records
Expert analysis of medical records discovery rights in NY personal injury cases. L.T. v Teva Pharms case study. Call (516) 750-0595 for consultation.
Mar 24, 2010Common Questions
Frequently Asked Questions
What is discovery in New York civil litigation?
Discovery is the pre-trial phase where parties exchange relevant information and evidence. Under CPLR Article 31, discovery methods include depositions (oral questioning under oath), interrogatories (written questions), document demands, requests for admission, and physical or mental examinations. Discovery in New York is governed by the principle of full disclosure of all relevant, non-privileged information — but courts can issue protective orders to limit discovery that is overly broad or burdensome.
What happens if a party fails to comply with discovery requests?
Under CPLR 3126, a court can impose penalties for failure to comply with discovery, including preclusion of evidence, striking of pleadings, or even dismissal of the action or entry of a default judgment. Before seeking sanctions, the requesting party typically must demonstrate a good-faith effort to resolve the dispute and may need to file a motion to compel disclosure under CPLR 3124.
What are interrogatories and how are they used in New York litigation?
Interrogatories are written questions served on the opposing party that must be answered under oath within a specified timeframe. Under CPLR 3130, interrogatories in New York are limited — a party may serve a maximum of 25 interrogatories, including subparts, without court permission. Interrogatories are useful for obtaining basic factual information such as witness names, insurance details, and factual contentions. Objections must be specific and timely or they may be waived.
What is a bill of particulars in New York personal injury cases?
A bill of particulars under CPLR 3043 and 3044 provides the defendant with the specific details of the plaintiff's claims — including the injuries sustained, the theory of liability, and the damages sought. In personal injury cases, it must specify each injury, the body parts affected, and the nature of the damages claimed. An amended or supplemental bill may be served to include new injuries or updated information discovered during the course of litigation.
What is an Examination Before Trial (EBT)?
An EBT, commonly called a deposition, is a pre-trial discovery tool under CPLR 3107 where a witness answers questions under oath. In personal injury and no-fault cases, EBTs are used to lock in testimony, assess witness credibility, and uncover facts relevant to the case. Both plaintiffs and defendants can be deposed, along with medical experts, claims adjusters, and other witnesses. EBT testimony can be used at trial for impeachment or as evidence if the witness is unavailable.
Was this article helpful?
About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a discovery matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.