Murillo v City of New York
Annotate this CaseDecided on December 16, 2016
Supreme Court, New York County
Jose Gutierrez Murillo, Plaintiff,
against
The City of New York, et al, Defendants.
155467/2014
Attorneys for Plaintiff:
Harris Law
110 East 59th Street
Suite 3200
New York, NY 10022
212-593-7600
Attorneys for Defendants:
Corporation Counsel
Zacharty W. Carter, Esq.
Attorneys for Defendant City of New York
100 Church Street
4th Floor
New York, NY 10007
Conway Farrell Curtin & Kelly, P.C.
Attorneys for Defendants Empire City Subway Company (Limited) and Verizon New York Inc.
48 Wall Street
20th Floor
New York, NY 10005
212-785-2929
David M. Santoro, Esq.
Attorneys for Defendants Consolidated Edison Company of New York Inc.
4 Irving Place
Room 1800
New York, NY 10003
212-460-3355
Newman Myers Kreines Gross Harris, P.C.
Attorneys for Defendant Time Warner Cable New York City LLC s/h/a Time Warner Cable Inc.
40 Wall Street
6th Floor
New York, NY 10005
212-619-4350
Law Offices of Leon R. Kowalski
Attorneys for Defendant Hylan Datacom & Electrical Inc.
12 Metrotech Center
28th Floor
Brooklyn, NY 11201
718-250-1100
Law Office of Daniel J. Sweeney
Attorneys for Defendant A W R Group, Inc.
941 North Broadway
White Plains, NY 10603
914-358-1220
Smith Mazure Director Wilkins Young & Yagerman, P.C.
Attorneys for Defendant SSK Constructors Joint Venture
111 John Street
New York, NY 10038
212-964-7400
Wilson Elser Moskowitz Edelman & Dicker LLP
Attorneys for Defendant Nico Asphalt Paving, Inc.
1133 Westchester Avenue White Plains, NY 10604
914-323-7000
Bartlett McDonough & Monaghan LLP
Attorneys for Defendant Safeway Construction Enterprises Inc.
170 Old Country Road
Mineola, NY 11501
516-877-2900
Zawisny & Zawisny
Attorneys for Defendant Phoenix Building Restorer, Inc.
578 Driggs Avenue
Brooklyn, NY 11211
718-388-3330
James E. d'Auguste, J.
Upon the foregoing papers, numerous defendants move and cross-move pursuant to New York Practice Civil Laws and Rules (CPLR) Rule 3116(a) to strike the plaintiff's errata sheets that list forty-five (45) corrections to his deposition transcript. For the following reasons, the motions are granted.
Plaintiff commenced this action seeking to recover damages for personal injuries allegedly sustained on January 19, 2014, when the tire of the bicycle he was riding allegedly came into contact with a hole in the roadway on East 70th Street between First and Second Avenues in New York County. A hearing pursuant to General Municipal Law (GML) Section 50-h was held on May 7, 2014 and his examination before trial (EBT) in this action was held on January 8, 2016, with the use of a Spanish translator. By letter dated February 23, 2016, plaintiff submitted errata sheets, signed and acknowledged on February 17, 2016.
Moving defendants assert that the errata sheets must be stricken due to plaintiff's failure to provide any explanations for the changes as required by CPLR Rule 3116(a); the errata sheets are not accompanied by an affidavit from a Spanish translator, or otherwise fail to account for the actual process by which plaintiff acknowledged each errata sheet; and the changes are so substantive in nature that they materially alter his testimony. In opposition, plaintiff submitted two sets of errata sheets, one in Spanish and one in English, each signed and acknowledged by plaintiff on March 30, 2016. The submission is accompanied by an affidavit from Jaime A. Rojas, who certified that he or she is fluent in Spanish and English, and translated the set of errata sheets, allegedly written by plaintiff in Spanish, into English.
It is undisputed that plaintiff's errata sheets, as initially served, are improper under the statute as none of the changes are accompanied by an explanation or a reason for the change. See Schachat v. Bell Atl. Corp., 282 AD2d 329 (1st Dep't 2001); see also Zamir v. Hilton Hotels Corp., 304 AD2d 493 (1st Dep't 2003); Garcia v. Stickel, 37 AD3d 368 (1st Dep't 2007).
As for the second submission, the Court notes that it is technically untimely under CPLR [*2]Rule 3116(a), which states that "[n]o changes to the transcript may be made by the witness more than sixty days after the submission to the witness for examination." Here, the deadline for plaintiff's changes was April 7, 2016,[FN1] yet the explanations to plaintiff's EBT changes and affidavit of translation were e-filed with his first set of opposition papers on April 12, 2016. Although the Court may extend time under CPLR Section 2004, such relief is appropriate only upon a showing of good cause. Zamir, 304 AD2d at 493. "[C]ourts should be circumspect about extending the 60-day period inasmuch as '[a]n indication from the courts that an extension will be allowed without a strong showing of justification will quickly evolve a dilatory attitude that can undermine the purpose of CPLR 3116 (a)'s time limit altogether.'" Id. at 493 (quoting David D. Siegel, Practice Commentaries, McKinneys Cons Laws of NY, Book 7B, C3116:1). Even though the second submission is untimely by a mere few days, plaintiff failed to give any justification for the delay in providing reasons or explanations for the EBT changes. Therefore, the motions could be granted on this basis alone.[FN2]
Even if the Court were to consider the untimely errata sheets, the motions are still granted. First, some of the corrections are not accompanied by a reason or explanation for the change; therefore, those should not be permitted, as stated supra. Second, "[a] correction will be rejected where the proffered reason for the change is inadequate." Torres v. Bd. of Educ. of City of NY, 137 AD3d 1256, 1257 (2d Dep't 2016). For example, plaintiff already attempted to correct the March 4th date to February 4th on the record after a lunch break — and the current attempt to now claim that he "misspoke" and change the numerous instances when he said March 4th, prior to the lunch break, to read as if he said February 4th, are suspect at best. See id. (the alleged explanation that the deponent "misspoke" is inadequate). Additionally, any changes sought to make plaintiff's EBT consistent with his GML Section 50-h testimony should also be rejected here. See id.
Further, "[t]he plaintiff's assertion in his opposition papers that the correction[s were] necessitated by confusion in the translation of his testimony by an interpreter is not supported by the record." Marzan v. Persaud, 29 AD3d 652, 653 (2d Dep't 2006). Moving defendants note, and this Court agrees, that any confusion from the translation was cleared on the record — the questions were read back to plaintiff and there is no indication that he did not understand after the interpreter explained what was being asked. Moreover, there is no indication from the record that the adequacy of the interpreter was challenged by plaintiff's counsel. See Rodriguez v. Jones, 227 AD2d 220 (1st Dep't 1996).
Accordingly, the moving defendants' motions and cross-motions to strike the plaintiff's errata sheets are granted. This constitutes the decision and order of the Court.
E N T E R,
HON. JAMES E. D'AUGUSTE, A.J.S.C. Footnotes
Footnote 1: See CPLR Rule 2103(b)(2). During the conference on the motions, counsel for the parties represented to the Court that the transcript was sent by mail to plaintiff's attorneys on February 2, 2016.
Footnote 2:Even though the Court acknowledges the deficiencies regarding the translation (e.g., that the papers fail to mention whether the entire transcript was translated from English to Spanish for plaintiff's review), the Court bases its decision to grant the motions on other grounds and need not reach this issue.
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