Thomas M. Bona, P.C.

Attorneys At Law

Can I Change That?

Second Department Rejects Changes To EBT Transcripts


As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent case concerning changes to deposition testimony.


Sometimes after a deposition has been completed the witness, or even worse, the attorney wants to make changes to the deposition transcript. The CPLR does indeed provide a way to make changes. A recent case from the Second Department demonstrated what can and cannot be done when a witness wants to change their deposition testimony. 


CPLR 3116(a) provides that a witness may make changes in form or substance to his deposition testimony as long as such changes are accompanied by a statement of the reasons given for the witness for making them. A correction will be rejected where the reason offered for the change is inadequate. In addition, material or critical changes to testimony through the use of an errata sheet are also prohibited.


In Torres v. Board of Education, the plaintiff testified at an examination before trial. Afterwards, the plaintiff made numerous and significant corrections to his deposition testimony on his errata sheet. The defendant moved to strike the errata sheet which was denied by the lower court. The defendant appealed.


The Second Department reversed and granted the motion to strike the errata sheet of the plaintiff’s deposition testimony. The Court found that the corrections that the plaintiff wanted to make to his deposition testimony through the errata sheet sought to substantively change portions of his testimony which were in conflict with his earlier testimony at his General Municipal Law section 50-h hearing on significant issues. The Court found that the reasons offered for the changes by plaintiff that he “mis-spoke” and that he was clarifying his testimony, were inadequate to warrant to the corrections.


Clearly when a plaintiff makes substantive changes to his deposition by using an errata sheet, the defense should promptly move to strike the errata sheet. Even if the motion is denied as it was here in plaintiff friendly Kings County, defense attorneys and adjusters should consider taking an appeal.


Should you have any questions, please call.

Thomas M. Bona