The trial court abused its discretion in precluding defendants from using a deposition given by plaintiff in a prior personal injury action. Plaintiff could not have been surprised by defendants' use of her deposition testimony, as she was obviously aware that she had given the deposition, and she had received a copy of the transcript, pursuant to CPLR 3101[e]. Plaintiff's prior deposition testimony was directly relevant to the injuries for which she sought damages in this action. In addition, plaintiff's counsel concedes that plaintiff would not have been prejudiced by defendants' failure to produce the documents at issue if she had been represented by the same counsel in this action and in the prior personal injury action. However, plaintiff was represented in this action by her counsel in the prior personal injury action on the date that the court's scheduling order required defendant to turn over any statements made by plaintiff. Therefore, defendants should not be penalized for not having done so.
Miller v. Camelot Communications Group, Inc., NY Slip Op 02091 (1st Dep't March 29, 2022)
