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.
One Response
I’d be wary of doing this in the no-fault context unless the entire transcript was exchanged during discovery prior to the motion. Otherwise, it invites a 321(f) argument, which should be granted.
I still think that attaching a partial transcript would create, rather than remove, triable issues of fact.