Can I Change That?
Second Department Rejects Changes To EBT Transcripts
As part of our continuing commitment to provide outstanding
representation and to serve as an information resource, we wish to inform you
of a recent case concerning changes to deposition testimony.
Sometimes after a deposition has been completed the witness,
or even worse, the attorney wants to make changes to the deposition transcript.
The CPLR does indeed provide a way to make changes. A recent case from the
Second Department demonstrated what can and cannot be done when a witness wants
to change their deposition testimony.
CPLR 3116(a) provides that a witness may make changes in
form or substance to his deposition testimony as long as such changes are
accompanied by a statement of the reasons given for the witness for making
them. A correction will be rejected where the reason offered for the change is
inadequate. In addition, material or critical changes to testimony through the
use of an errata sheet are also prohibited.
In Torres v. Board of Education, the plaintiff testified at
an examination before trial. Afterwards, the plaintiff made numerous and
significant corrections to his deposition testimony on his errata sheet. The
defendant moved to strike the errata sheet which was denied by the lower court.
The defendant appealed.
The Second Department reversed and granted the motion to
strike the errata sheet of the plaintiff’s deposition testimony. The Court
found that the corrections that the plaintiff wanted to make to his deposition
testimony through the errata sheet sought to substantively change portions of
his testimony which were in conflict with his earlier testimony at his General
Municipal Law section 50-h hearing on significant issues. The Court found that
the reasons offered for the changes by plaintiff that he “mis-spoke” and that
he was clarifying his testimony, were inadequate to warrant to the corrections.
Clearly when a plaintiff makes substantive changes to his
deposition by using an errata sheet, the defense should promptly move to strike
the errata sheet. Even if the motion is denied as it was here in plaintiff
friendly Kings County, defense attorneys and adjusters should consider taking
an appeal.
Should you have any questions, please call.
Thomas M. Bona
