Garcia v. Stickel

37 A.D.3d 368, 831 N.Y.S.2d 380

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 27, 2007
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered August 9, 2005, which denied defendants’ motions seeking rejection of plaintiffs errata sheets and summary judgment, unanimously reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

Plaintiff’s errata sheets should have been struck since plaintiff failed to timely submit a statement of the reasons for the numerous changes in his deposition testimony indicated thereon (see CPLR 3116 [a]; Schachat v Bell Atl. Corp., 282 AD2d 329 [2001]; Rodriguez v Jones, 227 AD2d 220 [1996]).

Defendants’ motions for summary judgment in this action to recover for alleged legal malpractice should have been granted since plaintiffs unrevised testimony and the affidavits submitted in opposition to the motions were insufficient to raise an issue of fact as to notice of the alleged defective condition, a “missing” ladder rung, and whether, but for the alleged malpractice, plaintiffs would have prevailed in the underlying action in which they were represented by defendants. Concur— Andrias, J.P, Friedman, Sullivan, Williams and Catterson, JJ.