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.

Three Year Secure Pass ID Card

At the Secure Pass ID Card web site, it says that:

“Secure Pass ID cards are valid for approximately two years and must then be renewed.”  

This is apparently true if you renew prior to the birthday upon which the Secure Pass ID Card expires.  But if you renew after your birthday and within the 90 day window within which it is still good, your new Secure Pass ID Card will be good for three years.  So oddly procrastination is rewarded.

Recent talk by Anthony Gair on the current state of New York construction accident law.

Watch Anthony Gair discuss Labor Law 240(1). It is from, December 9, 2011 and is just under 50 minutes.  So grab a sandwich and learn while you eat at your desk.  Click here to get started.

*Two Federal Court Removal Points

An attorney recently consulted with me concerning a removal issue. i.e. What could be done to have his case remanded to state court. After reviewing the case, I concluded that there was nothing that could be done, short of saying that the demand in the case was less than $75,000. I did note however, that because of the date of filing of the petition for removal (it should have been a notice of removal as petitions are no longer needed) by the corporate defendant, there was something that could have been done to prevent the removal in the first place.

CPLR §3017(c) provides in part that:

“…In an action to recover damages for personal injuries or wrongful death, the complaint, … shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled. If the action is brought in the Supreme Court, the pleading shall also state whether or not the amount of damages sought exceeds the jurisdictional limits of all lower courts, which would otherwise have jurisdiction. …”

When this statute became effective, it had the unintended effect of extending, in many if not most instances, the time within which defendants are required to file a notice of removal with the Federal Court, as the language suggested by the statute does not put the defendant on notice that the action seeks damages sufficient to meet the statutory minimum of $75,000 for Federal Court diversity jurisdiction. This discussion assumes proper diversity and no in-state defendant.

28 U.S.C. § 1446(b) provides in part that:

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a … paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 [diversity] of this title more than 1 year after commencement of the action.

Thus in most cases were there has been compliance with CPLR §3017(c), the time to remove won’t begin to run until the defendant’s attorney receives “a supplemental demand setting forth the total damages to which the pleader deems himself entitled,” (which a defendant is entitled to request under CPLR §3017(c).)

I therefore propose that plaintiffs, who wish to impede removal, set forth in their complaint that “damages sought exceed the jurisdictional limits of all lower courts and exceed the minimum necessary for diversity jurisdiction in all federal district courts which would otherwise have jurisdiction” This should start the time within which defendant has to remove, when received by defendant and thus require remand when the defendant does not file within 30 days of receipt of such a complaint.

It should be noted that any written or oral demand for settlement of $75,000 or more, that reaches the defendant or the defendant’s attorney after service of the complaint, can satisfied the requirement of letting the defendant know that the action meets the statutory limit for removal.

In the case I was consulted on, the defendant would not have filed timely if the demand was as I have suggested.

28 U.S.C. § 1446(b) provides in part that:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, …

When does receipt occurred, when not personally served upon the defendant? In the case of corporations, service is most often made upon statutory agents and designated agents. The former does not start the 30-day period for removal but the latter does.

In Recyclers Consulting Group v. IBM-Japan, Ltd., 1997 U.S. Dist. LEXIS 15356 (S.D.N.Y. Oct. 3, 1997) The Court concludes that “proper service of the summons and complaint on Defendant’s designee for service, …, triggered the 30-day removal limitations period”

In Cygielman v. Cunard Line Ltd., 890 F. Supp. 305 (S.D.N.Y. 1995) at 307 the court said that “[t]he heavy weight of authority is to the effect that the time for removal, in cases in which service is made on a statutory agent, runs from receipt of the pleading by the defendant rather than the statutory agent … . This makes abundant sense, as the defendant’s right to a federal forum ought not to depend upon the rapidity and accuracy with which statutory agents inform their principals of the commencement of litigation against them.”

And in the case I was consulted on, the designated agent was served, but the filing of removal papers was done based upon the assumption that receipt occurred when the papers were received by the defendant from their designated agent.

*Free CLE Credit – FRE Rule 502 Attorney-Client Privilege and Work Product; Limitations on Waiver

See an e-mail received today with an offer of free CLE credit in NY

The National Law Journal and Fordham Law School cordially invite you to
a complimentary Webinar with free CLE credit in NY, TX, IL, and CA.

Waiving Attorney-Client Privilege: Understanding Rule 502
November 2, 2010 | 1 PM EDT | REGISTER NOW

Speakers: Moderator:

Daniel J. Capra
Philip D. Reed Chair,
Fordham Law School

Judge Lee H. Rosenthal
U.S. District Judge, Southern District of Texas, and Chair, Judicial Conference
Standing Committee on Rules of Practice and Procedure

Kenneth A. Gary, JD
Associate Publisher,
The National Law Journal

Federal Rule of Evidence 502, signed into law in September 2008, provides protections to parties with privileged information who unintentionally disclose privileged material. Tied, in part, to issues that arise during electronic discovery, the measure seeks to reduce litigation costs typically arising in the process of privilege review and production. The rule establishes a presumption against subject matter waiver, resolves the issue of inadvertent disclosure, provides for confidentiality orders and supports party agreements, among other issues.

Please join Professor Capra, principal author of Rule 502, and Jude Rosenthal, who shepherded it through Congress, for a discussion of these standards for waiver of attorney-client privilege.

Visit www.law.com/fordham to register today.

*Changes to the USDC EDNY Arbitration Procedure: You Select the Arbitrator and Schedule the Session.

*Effective November 1, 2010, Counsel in cases designated for arbitration in the USDC EDNY will select the arbitrator and schedule the arbitration session, rather than the Arbitration Clerk, who previously performed these steps.

After a case is selected for arbitration, the Arbitration Clerk will send the following instructions to counsel via ECF:

“Within fourteen (14) days of the “Notice of Designating Case for Court Annexed Arbitration,” Counsel are to select an Arbitrator, schedule the arbitration session with the Arbitrator, and electronically file (via ECF) a “Proposed Order Appointing an Arbitrator.” The date selected shall not be later than 120 days from the date the answer was filed and, in the absence of the consent of the parties, shall not commence until 30 days after the disposition by the district court of any motion to dismiss the complaint, motion for judgment on the pleadings, motion to join necessary parties, or motion for summary judgment, if the motion was filed during a time period specified by the district court. The Arbitrator is authorized to change the time and date of the hearing provided it is within 30 days of the hearing date set forth in the proposed order. Continuances beyond this 30 day period must be approved by the Court. For a list of the EDNY Arbitrators and their qualifications, see the EDNY’s website at:


In accordance with Administrative Order 2004-08 (effective August 2, 2004) electronic filing became mandatory in the Eastern District of New York for all cases (pro se cases are excluded).”

Once approval is granted, pursuant to Local Rule 83.10(e)(6) the Arbitration Clerk will send Counsel the guidelines for arbitrators and the arbitration award via ECF. The Arbitration Clerk will also send PACER account information to the Arbitrator so that he or she will have access to the docket sheet and pleadings.

If anyone has questions, concerns, or comments about the upcoming changes, feel free to contact the USDC EDNY ADR Department at 718-613-2577.

Brooklyn ADR Office
U.S. District Court
Eastern District Court of New York
225 Cadman Plaza East, Room 215 South
Brooklyn, New York 11201

Central Islip ADR Office
U.S. District Court
Eastern District of New York
100 Federal Plaza
Central Islip, New York, 11722-4438

Brooklyn Arbitration Clerk
Rita Credle
Telephone: (718) 613-2325
Facsimile:(718) 613-2399
Email: rita_credle@nyed.uscourts.gov

Central Islip Arbitration Clerk
Jean Bollbach
Telephone: (631) 712-6047
Facsimile: (631) 712-6028
Email: Jean bollbach@nyed.uscourts.gov

USDC EDNY ADR Administrator
Gerald P. Lepp, Esq.
Telephone: (718) 613-2577
Facsimile:(718) 613-2368
Email: Gerald_P_Lepp@nyed.uscourts.gov

*From an e-mail recently received from USDC EDNY ADR Administrator, Gerald P. Lepp, Esq.

*Prior License Suspension Admissible, (Sometimes,) to Prove Gross Negligence.

On April 1, 2010, in a unanimous decision, People v Caban, 2010 NY Slip Op 02674, the Court of Appeals, reversed the Appellate Division, (People v Caban, 51 AD3d 455 (1st Dept 2008)) and found it proper to admit into evidence, a criminal defendant’s prior license suspension, arising from an incident with some similarities to the accident at issue, and in effect at the time of the accident at issue, to prove a charge of criminal negligence.

Criminal negligence is defined by the Penal Law § 15.05 (4):

“A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

And it has been said that “criminal negligence, … is only another name for gross negligence when it causes death or injury to life or limb” Perkins v. New York C. R. Co., 24 N.Y. 196, 205 (N.Y. 1862.) And when the evidence plainly shows … gross negligence in reckless disregard of another’s rights, punitive damages are justified. Fittipaldi v. Legassie, 18 A.D.2d 331, 335 (N.Y. App. Div. 4th Dep’t 1963.) But it should be kept in mind that some courts have held that “even where there is gross negligence, punitive damages are awarded only in “singularly rare cases” such as cases involving an improper state of mind or malice or cases involving wrongdoing to the public,” Karen S. v. Streitferdt, 172 A.D.2d 440 (1st Dep’t 1991)

The Caban Court had this to say about the introduction of the fact of the prior suspension:

“Thus the jury in this case had to consider not only whether defendant failed to perceive ‘a substantial and unjustifiable risk’ that her careless driving would kill someone, but also whether that failure was ‘a gross deviation from the standard of care that a reasonable person would observe in the situation.’ … The license suspension was relevant to this question, because a jury could find that it proved defendant to be more negligent than the other evidence showed her to be.

A jury could find that it is unreasonable to back up quickly into a crosswalk, without checking carefully to be sure that no one is in the way; but that it is even more unreasonable to do so when the state has forbidden the driver from driving at all. A jury could find that the license suspension should, if it did not keep defendant off the road, at least have prompted her to pay more attention to safety while she was driving, and that in failing to do so she deviated grossly from what a reasonable person would have done.

While a license suspension is, as a general proposition, relevant to the issue of criminal negligence, that does not mean evidence of a suspension is admissible whenever criminal negligence is in issue. Evidence, though relevant, may be excluded where “its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury” (People v Scarola, 71 NY2d 769, 777 [1988]). That danger is not present here. Defendant would have a better argument for exclusion if her license had been suspended, for example, for failure to pay parking tickets. But it was not. It was suspended for conduct frighteningly similar to the conduct that caused Francesca Maytin’s death — backing unsafely into a crosswalk. If the jury inferred from the license suspension that defendant should have known that it was unsafe for her to drive, the jury was not misled.

… When the issue is criminal negligence, a prior similar act for which defendant has been punished shows more than propensity; a defendant who is repeatedly negligent in the same way may be found to be unable or unwilling to learn from her mistakes — and thus to be guilty not just of deviation, but of ‘gross deviation,’ from reasonable care. The prior conduct is thus directly relevant to the extent of defendant’s negligence in the case on trial — to her mens rea.

The trial court did not err by allowing the fact of defendant’s license suspension into evidence.”

It is interesting to note that while the Court repeatedly speaks of the suspension having been for similar conduct, the jury did not know this, as only the fact of the suspension was admitted into evidence, not the reason why.

And when the Court spoke of how the jury might have viewed the suspension, they noted that the jury could made the finding of gross deviation solely upon the basis of the suspension, i.e. “A jury could find that it is unreasonable to back up quickly into a crosswalk, without checking carefully to be sure that no one is in the way; but that it is even more unreasonable to do so when the state has forbidden the driver from driving at all.

Also when the Court spoke of a suspension that should not be introduced into evidence, they did not speak of a non-similar moving violation, but a suspension for a non-driving reason, i.e. not paying parking tickets. So an outstanding question is, would a suspension for speeding have been admitted in this improper backing up case? I think not, for the purpose of the lack of the reason for the suspension going to the jury, was to avoid the clear prejudice that would arise, if the jury knew that the defendant had committed the same improper act before.

What I think is clear, however, is that if you have a civil case, where the operator, defendant, was driving with a suspended license, suspended for a moving violation, similar to the negligent act claimed in your case, you can claim gross negligence, seek punitive damages and introduce the fact of the prior suspension.