Alava v. Peninsula General Hospital

68 A.D.2d 875, 414 N.Y.S.2d 43, 1979 N.Y. App. Div. LEXIS 11103

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 1979
• Status: Published

Opinion

In a medical malpractice action, plaintiffs appeal from an order of the Supreme Court, Queens County, dated March 14, 1977, which, upon sustaining defendant’s objection to plaintiffs’ use of a tape recorder at examinations before trial, prohibited plaintiffs from using the tape recorder. Order reversed, without costs or disbursements, plaintiffs are permitted to use the tape recorder at the examinations before trial and defendant is permitted to have a stenographic transcript made of the depositions at its own expense. In our opinion defendant failed to demonstrate that the recording device plaintiffs proposed to use for continuation of their pretrial depositions was inadequate and of unsatisfactory fidelity (see Abelow v Grossman, 59 AD2d 849). However, in view of the fact that defendant has pointed out that at least two of the witnesses to be deposed have heavy foreign accents and the noise level in the room in which the depositions are being taken is very high, we believe that in addition to plaintiffs’ audio tape recording, defendant should be permitted to have, at its own cost, a stenographic transcription of the depositions (see 22 NYCRR 685.10; cf. Bichler v Lilly & Co., 50 AD2d 90; Rubino v Searle & Co., 73 Misc 2d 447). At this time we suggest to members of the Bar wishing to utilize either a video or audio recorder for depositions, that they become familiar with the recent amendment to CPLR 3113 (subd [b]), and the rules of this court "governing electronic recording of depositions in civil cases” (22 NYCRR Part 685). Titone, J. P., O’Connor, Martuscello and Mangano, JJ., concur.