Category Archives: Trial Practice – Cross-Examination

If You Fail To Comply With C.P.L.R. 3116, You Can’t Use A Deposition Transcript To Cross Examine A Witness, Well Maybe You Can’t.

In Ramirez v Willow Ridge Country Club, Inc., 84 AD3d 452, (1st Dept 2011) the First Department, for the first time by any Appellate Court, from what I could find, approved precluding the use of a deposition transcript during cross-examination on the ground that there had been a failure to show compliance with CPLR 3116. In its decision, the Court said:

[T]he court properly precluded the use of Jack’s unsigned deposition transcript during Jack’s cross-examination inasmuch as plaintiff failed to establish that the transcript was sent to Jack and that he failed to return it within 60 days.

CPLR 3116 (a) provides that a deposition shall be submitted to the witness who can make changes. The witness must then sign the deposition under oath. If the witness fails to sign and return the deposition within 60 days, it may be used as fully as though signed. A failure to comply with CPLR 3116 (a) results in a party being unable to use the transcript pursuant to CPLR 3117 (see Santos v Intown Assoc., 17 AD3d 564 [2005] ; Lalli v Abe, 234 AD2d 346 [1996]).

It is the burden of the party proffering the deposition transcript to establish compliance with CPLR 3116 (a) (Pina v Flik Intl. Corp., 25 AD3d 772, 773 [2006]).

The Second Department cases that the Court relied upon to preclude the use of the deposition, deal with the use of depositions on motions for summary judgment. Therefore, it would seem that any exception to the general rule that prohibits the use of unsigned depositions on a motion for summary judgment, would permit the use of such a deposition on cross-examination.

The major exception is an unsigned but certified deposition. In Delishi v. Property Owner (USA) LLC 31 Misc.3d 661, 665-666, (Sup. Kings 2011) the court researched the use of an unsigned but certified deposition on a motion for summary judgment and said:

There is also limited authority in the First and Fourth Departments that “[a]n unsigned but certified deposition transcript of a party can be used by the opposing party as an admission.” … There is logic to this position, but it is apparent from the authorities cited above that it has not commended itself to the Second Department, and this Court is bound to follow the Second Department … (citations omitted.)

But See In re Estate of Ciraolo 2005 WL 3636709, 2 (Kings Sur., 2005) where the court said, in deciding a motion for summary judgment motion, that “just as an affidavit may be used, an unsigned certified deposition may also be used. The certification of the deposition is the equivalent to an affidavit.”

So if an unsigned but certified deposition has not been sent to a witness timely, one might argue that it can be used on cross-examination as it is certified, as same is usable on a motion for summary judgment.