Dorset Caterers, Inc. v. Nassau and Suffolk Dining Car & Restaurant Ass'n

• Decision Date: 12 October 1971
• Citation: 67 Misc.2d 687,325 N.Y.S.2d 39
• Court: New York District Court
• Parties: DORSET CATERERS, INC., Plaintiff, v. NASSAU & SUFFOLK DINING CAR AND RESTAURANT ASSOCIATION, Inc., Defendant.

Page 39

325 N.Y.S.2d 39

67 Misc.2d 687

DORSET CATERERS, INC., Plaintiff, v. NASSAU & SUFFOLK DINING CAR AND RESTAURANT ASSOCIATION Inc., Defendant.

District Court, Nassau County, First District, Mineola Part.

Oct. 12, 1971.

Samuel Mandell, Hewlett, for plaintiff.

Rosenberg, Rosenberg, & Rockman, Mineola, for defendant.

EDWARD J. POULOS, Judge.

Plaintiff moves to strike defendant's answer pursuant to CPLR 3126 for failing and refusing to sign the transcript of the examination before trial heretofore taken of defendant.

Defendant counters with the argument that:

(1) 'that many of the questions that were asked and answered by him (defendant's witness) were not in the record';

(2) that the examination was improperly taken in that defendant's attorneys' stenographer was used in taking the testimony.

The Attorneys for defendant rely on a letter they sent (Exhibit B of the moving papers) in which they claim to have rejected the examination before trial because at the time of its taking they made 'vehement objections' to the fact that plaintiff's attorneys' stenographer took the depostion.

Unfortunately, the procedure followed by the attorney for the defendant is not sanctioned under the rules. A similar situation arose in the case of Peters v. State of New York, reported in 41 Misc.2d 980, 247 N.Y.S.2d 811 and aff'd in 22 A.D.2d 764, 253 N.Y.S.2d 260. There, the affidavit on behalf of the party who was examined alleged that the testimony was garbled, incoherent and incomplete and that several important questions asked by the attorney for the party being examined did not appear in the transcript. The Court said it did not consider these matters pertinent to the motion and used the following language (p. 982, 247 N.Y.S.2d p. 813):

'The proper method of dealing with errors of the officer or person transcribing a deposition is a motion to suppress the deponent's deposition or some part thereof pursuant to CPLR Rule 3116, subdivision (e). The claimants have not seen fit to proceed under said rule and since they have not done so we will give no further consideration to any errors in the transcript of the examination before trial.'

And in Hayes v. City, reported in Sup., 98 N.Y.S.2d 424, the Court suggested that the proper way to handle a situation like this is for the witness to add a statement that certain answers in the transcript are incorrect, give the reasons, and then subscribe his testimony.

As to the argument that the plaintiff had no right...