Curry v Duane Reade Inc.

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Curry v Duane Reade Inc. 2012 NY Slip Op 30969(U) April 10, 2012 Supreme Court, New York County Docket Number: 111061/10 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] -J. APR 11m2 NEW YORK COUl\lTY CLERKS OFFICE 1 [* 2] I t Supnme Court of the S t a b of .Iew Yor k County of New Yark: Part I O I . Plaintiff, -againstDuane Reade Inc. and World Sewrtty Consultants Inc., "John Doe"and "William Roe", ffctttlous namea of security guards ~ ~ . H real names are unknown, E J DmckionlOrdoI Index No.: ' I 1061I1 0 I Seq. No. : 001 PresOnt Jjnn. Judith J- Glsche J.S.C. Defendants. Redtation, as requlred by CPLR 2219 [a], of the papers &sidered (these) motion(8): in the revbw of t l hs - 1 bmrod W S [stdke deposition] wl JFJ afflnn,exhs. , . . , . . . . , . , . . , . . . . . . . . , . . . . 1 , 2 nlm Pttf'a opp. wt DDC affirm, exhs. . . . . . . . . . . . . . . . . . . . . , 'ApR' 112012.. . . . . 3 Defs replyw/ JFJ affirm. . . . . . . . . . . . . . :. . . . . . . . . . . . . . . . . . . . , . . . . . , , . . . . . 4 Papers I U p fhe fomgoing pepsrs, the deciston and order of the cbtsiwdy qgFi&ME COUNTY CLER This is an action InvoMng the plalntiff, Mary Curry ("Curry"), who claims she was ~ Injured outsue a Duane Reade ('DR? store on the public sidewalk when her grandson bscarna bmbrollad in an attermtlon with a security guard employed by World security Consultants, Inc. (YVSC") (collectively 'defendants*). DR p ~ ~ ~ ~ t thisycourt (1) moves t for an order strikfng plaintiffs Complaint bemuse she thwarted discovery by testifying at hsr daposiffon in a meaningless manner and then submitted four pages of %orrectlons' with one hundred four changes to a one hundred seventy page tmnscript; (2) that plainw be equbbly estopped from continuing proascution of this action, (3) precluding plaintiff from offering any evklsnce at the trial because she abused the deprrsltion pmcasa; or, (4) compalfing ptaintlff to appaar for a further examination beroore trial. [* 3] I I Summary of the Facts and Argument8 Plaintiffalleges that DR and WSC were Jointand severally negligent, in musing her to be struck and phyaically contacted by a security guard employed by plaintiffa, whlch resulted In personal injuries on November 3, 2009, when plaintiff was present on DR's premises, located at 279 West 125" Street in New York County. Plaintlff further alleges a claim agalnst the dafendants for negligent supsnrlslon. DR denies any culpabllity. On April 6, 2011, plaintiff appeared for an examinatlon before trlal ("EBT" or "depition7. On May 12,201 1, plaintiff's counsel recehred a copy of the EBT tmnacript. On July I 201 1,plaintWscounsel malM an executed copy,wkh an attachad errata sheet, I to DR's counsel. On July 8, 2011 DR'a counsel claims that it received four pages of changes to the EBT transerlpt, that Induded 104 changes to a 170 page banscrlpt DR now dalms that plaintiW8 EBT transcript (Def8 Exh. E)t demonstrates that she gave answers which w m largaty unintelligible,and in which she contradicted herseff on numerous occasions. DR further claims that the deposltlon transcript h evidence that plaintiffwas not propard for her depositton,and that she had the intent o making a sham f of any attempt to elicit slrnple an9wr5 from her, particularly In llght of the 104 changes in an anta sheet (Defs ¬xh. H). DR clalms that the emta ahwt constitutes further meaningless and illogical responses to simple questions posed to plaintfff. PlalntifPa counsel submitted an affirmation in opposition stating that plaintM la "an 85-year-oldl diabetlc great grandmother with a cataract etlll in one eye, [who] after a fourhour grueling EBT simply submitted timely correction (a.k.aerrata) sheets with numerous e n W , the majorlty of which am 'immatsrial." Plaintiff counsel clalms that DR's motion should be denied because the errata sheets make virtually no material substantlve - page 2 of S - [* 4] changes to the content of the original transcript of plaintlfs EBT. Plaintiff's counsel further claims that the entdes on the errata sheets etther (1) merety repeat the content of the original mawar with no significant change; or (2) note, plainWs lack of understanding of the questhna asked;or (3) express her lack o m i l of being asked the questions posed; f l or (4) aimply deny having given the answer. Dlscusslon CPLR 5 3116(a) provfdes that "any changes In form of Substance [to P depasltlon] which the witness desires to make shall be entered at the end of the deposltlon wlth a statement ofthe ma80ns given by the witness for making them." w - Tnmt C o v v of W e Corn,, 282 A.D.2d 329,329-30(1st Dept. 2001); The York v C o b , I 9 A.D.2d 857 [4th h p t 1Q631). , A witness may change, a depmltion transcript: if tt is an incorrect rendering of the testimony actually glven at the deposition, or, where the hnscn'pt is correct, if the witness now nscolkts the matter dlfFerently and wishes to give a different response. In efther Instance, the parties to the lltlgation may differwith the witness,and may wish t make an o issue at tdal about the nature of the change and the reason for it. HOSP,, 2001 WL 36370078 (N.Y.Sup. Ct.2001) (internal Matlons omkted). Thus, 'tvitnesses have the expikit rlghtto change deposiliontesff mony provlddthat they do 80 I accordance with [the statute]* @ovcpl v V n Dept 1898l). However, 81 conclusory statement in w , 240 A.D.2d 724,725 [3d an errata ah- ¬ will be deemud insufficient to explain "a slgnlflcant, substantive amendment of [a paws] deposttion testimony." , 20 AD.3d 652,053 (2d Dept. 2008); -ez v. Jan=, 227 A.D.2d 220 (1st Dept 1SQ6). The wurt notes that many of plaintiff's correction8 contained In her errata sheat8 [* 5] c fail to pmlde the reasoner for the co~mctlon8,In violation of the statute and caw law. ne Trust Co. of We&m New York v. calllns.supra (*the omnlbus statement of the witnaaa that correctiona were mads to correct his errors in testifying ... is improper"); la v. LQQ,239 A.D. 849, 850 (2d Dept 1833); s u p , at 329-30(1st Dept. 2001); m v. M ,A U- n Y. P m m , supra, at 653 (2d Dept 2006) (conciusory m a w nfor correction insufficientto explainslgniflcant, substanthmamendment to deposition testimony); J3od-z v. BoIIAtlantic Corn,,SUPIB, at 329-30 (I Dept. 2001); 8t v. Jonaa, supre (Court refuaed to conslder plalntWa corrtction sheet to her deposition bacause the correctionsheet ladred a statement of the reasons for making the corrections). Furthermore,it is not dear whether the handwrittennotes in the emta sheet actually address changes or transcription errors, or they are simply commentary relating to the queetions posed. Courts have r e f u d to allow changes that the deponent has failed to explain sufficiently. (See,ag., &lev v. ISS lnrl Saw, SVS ., 284 AD.2d 320 [2nd Dept.2DOi][Striking plaintiff's errata sheet to his deposkn transcript where plaintiff provlded only an omnibus reason for rnaklng l t corrections and whers the sheet ladred ae a statement of m89ns for making the corrections]; v. J o m , supra. Upon a review o the errata sheet at bar, tha court finds that a majority of plalnws f handwrittenantties are, 8s her attorney states, 'immaterial." However,the court istroubled that buried amongst plaintiff's general commentaries o 'lles" and gensral "no's'them are f changes that not only clarify or correct obvious or even subtle transwfptlon errors, but entries that may contradict crucial elements of her prior dspositbn testimony. Therefore, the court grants the motion only to the extant of striking the present errata sheet in it8 [* 6] entirety. The wurt, however, is rrlllidful that the plaintiff made attempts to comply with CPLR 5 31 16, albeit Imperfectly. Therefore, the court extendsthe ptalntiff's t h e to submlt a proper errata sheet, that comportrs with the applicable statute and case law, to 60 daw from the date this dechlon and order appears on the Supreme Court On-Line Library (SCROLL). (CPLR Q 3116; CPLR 5 2004; compare: &m[r v. Hilton Hotels Corn,, 304 A.D.2d 483 11st Dept 2003D. PlalntWs counaal Is admonished to pperly s u p s n b tha new submtsslon to make sure it is in appropriate form. Failure to submit a new proper errata sheet will automatically result In the murt deeming the original deposition transqipt as signed and sworn to without the need for en additional motion. The other relief w a t d by DR, such as atrlklng the compialnt, to too wvere a remedy for the ldentlfled u ss conduct. Any arguments not spectfically addressed hemin have nonotheless been conaklard. Any relief mquested but not spedfically addressed supra ia hereby denied. This consthb the declsion and order of the court Datd: New York, New York April 2012 So Ordered: - page 5 of 6 -

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