Portion of a deposition is enough

Summary judgment practice frequently requires submission of deposition testimony to establish or refute material facts. Parties moving for summary judgment typically rely on plaintiffs’ or defendants’ depositions to demonstrate the absence of factual disputes warranting trial. The question of how much deposition testimony moving parties must submit has generated uncertainty among practitioners—must movants submit entire deposition transcripts, or do selected excerpts suffice to establish prima facie entitlement to judgment?

Many attorneys operate under the assumption that complete deposition transcripts must accompany summary judgment motions to avoid claims of selective quotation or context manipulation. This practice stems from reasonable concerns that excerpt selection might present testimony misleadingly, omitting crucial context that changes the testimony’s meaning. Courts reviewing motions based on deposition excerpts risk making determinations without full factual records if excerpts fail to capture testimony’s complete substance.

However, requiring submission of entire deposition transcripts in every summary judgment motion creates practical burdens. Depositions in complex litigation may span hundreds of pages, with only small portions relevant to specific summary judgment issues. Requiring complete transcripts increases motion paper volumes unnecessarily, raises copying and filing costs, and burdens courts with voluminous submissions where most pages bear no relationship to the issues under consideration. The Second Department’s decision in Pankratov v 2935 OP, LLC addressed this tension, establishing guidelines for when deposition excerpts suffice versus when complete transcripts become necessary.

Case Background

The plaintiff in Pankratov sued for injuries sustained in a slip and fall accident. The defendant moved for summary judgment, submitting excerpts from the plaintiff’s deposition transcript demonstrating that the plaintiff could not identify what caused his fall without resorting to speculation. Based on these excerpts, the defendant argued it had established prima facie entitlement to summary judgment because the plaintiff lacked admissible evidence establishing a dangerous condition caused the accident.

The excerpted testimony presented in the defendant’s motion papers showed the plaintiff making uncertain statements about the accident’s cause and acknowledging he did not clearly see what caused him to fall. Viewed in isolation, this excerpted testimony appeared to support the defendant’s argument that the plaintiff could not establish causation, a required element of his negligence claim. The defendant contended these excerpts alone sufficed to shift the burden to the plaintiff to raise triable issues of fact.

In opposition to the defendant’s motion, the plaintiff submitted a complete copy of his deposition transcript. When reviewing the entire transcript rather than merely the defendant’s selected excerpts, the full context of the plaintiff’s testimony became apparent. The complete transcript revealed that the plaintiff had identified transparent ice as the cause of his fall, providing specific testimony about the hazard he encountered. The plaintiff also submitted an affidavit correlating to his deposition testimony, explaining that he fell due to transparent ice on the defendant’s property.

The trial court confronted the question whether the defendant’s excerpted testimony sufficiently established prima facie entitlement to summary judgment, or whether the plaintiff’s submission of the complete transcript and contextualizing affidavit raised triable issues of fact precluding summary judgment.

Pankratov v 2935 OP, LLC, 2018 NY Slip Op 02479 (2d Dept. 2018)

“In support of its motion, the defendant submitted excerpts of the plaintiff’s deposition transcript which demonstrated, prima facie, that the plaintiff was unable to identify the cause of his fall without resorting to speculation (see Razza v LP Petroleum Corp., 153 AD3d 740, 741; Amster v Kromer, 150 AD3d 804, 804; Hoovis v Grand City 99 Cents Store, Inc., 146 AD3d 866, 866; Hahn v Go Go Bus Tours, Inc., 144 AD3d 748, 749; Giordano v Giordano, 140 AD3d 699, 700). In opposition, however, the plaintiff raised a triable issue of fact in this regard by submitting a complete copy of his deposition transcript. When the entirety of that transcript is reviewed, it is clear that the plaintiff identified transparent ice as the cause of his fall. Contrary to the defendant’s contention, such testimony correlates to the plaintiff’s averments regarding the cause of his fall which were set forth in his subsequent affidavit.”

I always thought (and now incorrectly) that a party seeking to use EBT testimony in support (or in opposition) needed to include the entire deposition transcript. It was always dicey to pick the pieces of the EBT you want to insert in the motion. The court, however, sees this as being alright.

Legal Significance

The Second Department’s holding establishes that moving parties may submit deposition excerpts rather than complete transcripts when the excerpts fairly represent the testimony relevant to the summary judgment motion’s issues. The court’s acceptance of the defendant’s excerpted testimony as sufficient to establish a prima facie case demonstrates that complete transcripts are not mandatory for movants. Parties moving for summary judgment may select relevant portions of depositions, submit only those portions, and potentially establish prima facie entitlement to judgment based on the excerpted material.

However, the decision simultaneously protects opposing parties against misleading excerpt selection by permitting them to submit complete transcripts in opposition. When defendants submit excerpts that appear to establish prima facie cases but omit crucial contextualizing testimony, plaintiffs may defeat the motion by providing complete transcripts revealing the full testimonial context. Courts must then review the complete record rather than merely the movant’s selected excerpts when determining whether triable issues of fact exist.

This framework balances competing interests in summary judgment practice. Permitting excerpt submission reduces unnecessary motion paper volume and focuses courts’ attention on specifically relevant testimony. Simultaneously, allowing opposing parties to submit complete transcripts prevents movants from manipulating testimony through selective quotation. The burden falls on movants to excerpt fairly—if they present testimony misleadingly, opposing parties can expose the misrepresentation by providing complete transcripts.

The decision’s specific facts illustrate how this framework operates. The defendant’s excerpts, viewed in isolation, suggested the plaintiff could not identify his fall’s cause without speculation. However, the complete transcript revealed that the plaintiff did identify a specific cause—transparent ice—and that the excerpted portions taken out of context created a misleading impression. By permitting the plaintiff to submit the complete transcript, the court ensured that summary judgment determinations rested on the full evidentiary record rather than selectively presented fragments.

The court’s acceptance of the plaintiff’s subsequent affidavit as corroborating his deposition testimony also carries significance. Parties may not create issues of fact by contradicting their own deposition testimony in later affidavits, but they may clarify or explain testimony through affidavits that correlate with rather than contradict their depositions. Here, the plaintiff’s affidavit did not contradict his deposition but rather confirmed and explained testimony that appeared in the complete transcript even if it was absent from the defendant’s excerpts.

Practical Implications

Attorneys moving for summary judgment should feel comfortable submitting deposition excerpts rather than complete transcripts when the excerpts fairly capture relevant testimony. Practitioners need not burden motions with hundreds of pages of transcript when only a few pages address the motion’s issues. However, movants bear the risk that opposing parties may submit complete transcripts revealing that excerpted material presented testimony misleadingly or omitted crucial context. Movants should excerpt conservatively, including enough surrounding testimony to provide adequate context and avoid creating misleading impressions.

When selecting deposition excerpts, practitioners should include several pages before and after the specific testimony supporting their positions, ensuring that readers can understand the testimony’s context. If questions and answers spanning multiple pages collectively establish a point, the entire sequence should be included rather than isolated question-answer pairs. Footnotes or explanatory text can alert courts that excerpts derive from longer depositions available upon request, demonstrating good faith in excerpt selection.

Opposing parties confronting summary judgment motions based on excerpted deposition testimony should carefully review complete transcripts to identify whether additional testimony creates different impressions than the excerpts suggest. When complete transcripts reveal that movants excerpted selectively or misleadingly, opposition papers should submit the complete transcripts and specifically identify the additional testimony that creates triable issues or contradicts the impression created by excerpts. Simply submitting complete transcripts without explanation may prove insufficient—opposition papers should guide courts to the specific additional testimony that matters.

The decision also provides strategic guidance for deposition practice itself. Attorneys should ensure their clients provide clear, unambiguous testimony on critical issues, anticipating that opposing counsel may excerpt portions of depositions in summary judgment motions. When testimony on crucial topics appears scattered across deposition transcripts or requires significant context to understand properly, attorneys should consider rehabilitating witnesses on the record, asking clarifying questions that create clear, quotable testimony resistant to misleading excerpting.

Courts reviewing summary judgment motions based on excerpted depositions should remain alert to the possibility that complete transcripts might reveal different impressions than excerpts suggest. When excerpted testimony appears ambiguous, contradictory, or potentially taken out of context, courts may require submission of complete transcripts before ruling or may conduct their own review of complete transcripts when opposing parties submit them. The burden ultimately falls on movants to demonstrate they are entitled to judgment as a matter of law based on the full evidentiary record, not merely carefully selected fragments.

Related Articles

• Appellate Term holds CPLR 3212(f) relief is inappropriate under three separate circumstances
• NY EBT Venue Rules: When Courts Grant Undue Hardship Exceptions for Depositions
• Remote Depositions for International Parties: Legal Precedent from Long Island and NYC Courts
• The failure of an assignor to appear for an EBT is not a basis for a 3126 sanction against the assignee