De Curtis v. St. Lucy's Roman Catholic Church

33 A.D.2d 997 | N.Y. App. Div. | 1970

Order entered March 7,1969, which, so far as appealed from, directed defendant to deliver the signed, original transcript of a witness’ deposition unanimously modified on the law and the facts, to permit delivery of the unsigned deposition of the witness, which deposition, in accordance with defendant’s concession on argument of the appeal, may be used on the trial with the same force and effect as if signed and executed by the witness, upon condition, however, that defendant pay $100 costs to plaintiffs-respondents and costs and disbursements on this appeal. Order entered August 18, 1969, striking defendant’s answer for failure to return a signed transcript of the deposition of a witness, unanimously reversed on the law and the facts, and the motion to strike the answer denied, with costs and disbursements to respondents. One bill of $50 costs and disbursements on both appeals. The office of defendant’s attorney concedes that it was guilty of errors, oversights and “ slips ” in the conduct of the defense of this action. This conduct on one occasion was characterized by Special Term as “ arrant professional discourtesy.” It must be admitted, nevertheless, that, although unsuccessful, it did seek to gain the witness’ signature to the transcript of his deposition by means which it thought would be the most effective. In the circumstances, while an alternate method would permit use of the unsigned deposition at the trial (CPLR 3116, subd. [a]), it need not be considered in view of the concession set forth above made by the defendant upon argument. A reversal of the order entered August 18, 1969, striking the answer for defendant’s failure to comply with the direction of the first order that it deliver a signed transcript of the deposition, necessarily follows. Concur — Stevens, P. J., Eager, Nunez and Tilzer, JJ.