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posted 9 years ago
In Rosenblatt v. St. George Health & Racquetball Associates,
LLC, No. 2011-10114, 2014 WL 1688149 (N.Y. App. Div. Apr. 30, 2014),
the Appellate Division, Second Department, provided a protocol for
determining when courts may decide matters on the basis of arguments not
raised by the parties. In doing so, the court analyzed the
arcane question of the difference between a certified and a verified
deposition.
Claiming that she had been injured after falling off an exercise ball
during morning body sculpting class at defendant’s gym, plaintiff Eleanor
Rosenblatt sued alleging failure to adequately train, supervise, or
provide an appropriate instructor. Following discovery, defendant
moved for summary judgment on the grounds of an express assumption of the
risk. In support, defendant submitted an unsigned and uncertified
copy of plaintiff’s deposition transcript and an unsigned copy of the
instructor’s deposition. Relying on the rule that the
proponent of summary judgment must tender admissible evidence to show the
absence of any material fact, plaintiff argued that the copies of the
deposition transcripts were “not in evidentiary form given that they are
unverified and unsubscribed.” Id. at *2.
Finding that the deposition was not certified by the court reporter and
therefore concluding that it was inadmissible, the motion court denied
summary judgment. The Second Department disagreed on the basis
that the plaintiff’s failure to raise these arguments before the motion
court precluded that court from denying the motion on those grounds.
The motion court was wrong to sua sponte hold that plaintiff’s
deposition transcript was inadmissible. Instead, “the plaintiff’s
objection to the transcript as ‘unverified’ cannot be viewed as an
objection to its lack of certification.” Id. at *4.
As the Second Department reasoned: “[a] verification requires
a deponent to swear to the truth of statements, whereas a certification
requires the officer to state that the deponent was sworn by him or her
and that the officer’s transcription of the witness’s testimony is
accurate. A certification and a verification are not synonymous and,
therefore, the plaintiff’s assertion that her deposition transcript was
unverified was not equivalent to a claim that her deposition transcript
was uncertified.” Additionally, the fact that the plaintiff did not
challenge the accuracy of her deposition transcript meant that the lack of
a signature did not necessarily render the deposition transcript
inadmissible, as defendant had followed the procedure in the CPLR to have
an unsigned deposition considered to be admissible evidence.
Thus, the motion court erred in concluding that plaintiff’s deposition
transcript was inadmissible without affording defendant the opportunity to
argue these points. The Court reasoned that courts “are not in the
business of blindsiding litigants, who expect us to decide their appeals
on rationales advanced by the parties, not arguments their adversaries
never made.” Id. at *5 (citation omitted).
In reaching this result, it was necessary for the Second Department to
distinguish its recent decision in Tirado v. Miller, 75 A.D.3d
153, 160, 901 N.Y.S.2d 358 (2010). Tirado held that “a
court may decide a nondispositive discovery motion upon grounds other than
those argued by the parties in their submissions.”
Id. Because in this case the defendant’s motion was for
summary judgment and thus dispositive in nature, a court was not permitted
to deny the motion on grounds the parties did not themselves argue.
In the Second Department—at the least—although a court may decide a
non-dispositive motion on grounds not briefed by the parties, that choice
is foreclosed on a dispositive motion. If a court believes that an
issue not raised by the parties can resolve a dispositive motion, then the
court must give the parties an opportunity to brief it. Failure to
do so would constitute reversible error.
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