ERRATA SHEET STRICKEN BY APPELLATE COURT
After he was questioned under oath (during a deposition), and was asked to sign off on the transcript, the plaintiff, RCF, presented an “errata sheet” which modified his testimony in a significant way.
When the Bronx County Supreme Court declined to strike that paperwork -- pursuant to CPLR 3116(a) – the Defendant appealed.
On its review of the record, the Appellate Division, First Department, noted that the plaintiff was now contending (post-deposition) that his fall was due to “uneven steps;” something he did not mention during the course of his questioning. In fact, he claimed not to have known what triggered his fall.
While the plaintiff claimed to have been confused as to whether he was being asked about the conditions at the top or bottom of the stairs, the AD1 thought that explanation was "insufficient" to justify relief in his favor, particularly since he never expressed any confusion when he was testifying.
Given that the change was “material and critical,” the AD1 thought the motion court should have granted the defendant’s request and “unanimously reversed” the underlying determination.
Ironically, that kind of error on an errata sheet was clearly erroneous.
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DECISION