Define That Term #224
The New York Blawg Round Up

No More Movie Theaters For Me

Cooper v Carmike Cinemas, Inc. 2007 NY Slip Op 05028, is a case that has cemented my love for Netflix.  In Cooper, the plaintiff was injured when he stepped on a nail while a patron at the defendant's movie theater.  As a result of the injury, his foot became infected and had to be amputated

See what I mean? Netflix, all the way, baby!

But I digress--and then some.

The Fourth Department held, correctly, in my opinion, that the trial court inproperly denied the defendant's motion for summary judgment on the grounds that the plaintiff could proceed on the theory of res ipsa loquitur.  The Court concluded that res ipsa loquitur was inapplicable since the record failed to establish that the nail that caused his injury was within the exclusive control of the defendant.

However, the Court held that the defendant's motion for summary judgment was properly denied on another basis:

Defendant failed to meet its burden of establishing as a matter of law that it did not create the dangerous condition...nor did it establish that it lacked actual or constructive notice of the dangerous condition...We note in particular with respect to notice that, in support of its motion, defendant submitted the deposition testimony of several of its former employees, none of whom had any personal recollection of the manner in which defendant's theaters were cleaned or the frequency of the cleaning at or near the time of the incident. ...Defendant submitted no evidence that the theater had been cleaned and inspected during a period of time that was close to the time of plaintiff's injury. Thus, "defendant failed to establish that the [nail] had not been on the floor for a sufficient length of time to permit an employee to discover and remedy the condition"...

I bet the defense would have been granted summary judgment in a heartbeat if the motion had included affidavits from employees with personal knowledge rather than relying on deposition testimony.  Sometimes it seems like it might save time and be a lot easier to rely on excerpts from depositions, but in my experience it generally creates more work down the road than if you'd spent a little time up front to get the information that you need in affidavits that you've prepared.

Occasionally you can find snippets of testimony from deposition transcripts that support your motion, but it's rare to find exactly what you require.  Obviously, you can use deposition testimony from witnesses for your opponent, since you won't be able to obtain affidavits from them unless of course opposing counsel provides them in support of their response, although those affidavits are generally not helpful for your position).

But, when it comes to agents of your client, your best bet is almost always to obtain affidavits and utilize the deposition transcripts as further evidence of the point that you're trying to make.

Another issue that arises when using deposition transcripts to support you motion is whether to attach the relevant excerpts of the transcripts or to attach the transcripts in their entirety.

There are two camps on this.  I've heard judges complain that lengthy motions with hundreds of pages of transcripts attached as exhibits is pointless and serves no purpose other than contributing to the demise of many poor trees.

I happen to be in the other camp, since I've found myself in the unenviable position of attempting to draft an interlocutory civil appeal on another attorney's file when only excerpts were included.  Let me assure you that it's extremely frustrating when the testimony that would really help your position on appeal is found on page 28 of the transcript, but only pages 23-27 were attached to the motion and thus are part of the record on appeal.

But, once again, I digress.

Back to my original point.  No more movie theaters for me.  In fact, I don't think I'll be leaving my house anytime soon.  It's a jungle out there.


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Scott Greenfield

The question of whether to overload a motion with exhibits or take a more surgical approach is the age old choice between trying to win in the first place or protect the record.

My experience is that submission of a thousand pages is a guarantee that the court won't bother to read your papers. When they get 10 pounds of paper on their desk, versus ten pages of tight argument with exhibits that nail down the issue, the ten pages wins every time. They just stare at the mass of papers and sigh, thinking I just don't want to read this.

But your experience on an interlocutory appeal raises a different problem as well. If the proof is on page 28, and the lawyer attached pages 23-27, then the problem isn't with the paper but with the lawyer. That, of course, is a different problem.



Scott, you can still have a tight argument with entire deposition transcripts attached, as opposed to excerpts.

And, while you raise a good point re: the problem being with the lawyer, when it comes to appeals, you never know exactly what you might need to rebut something that opposing counsel has said.

No matter how much preparation you've done prior to 1) filing the complaint 2) requesting discovery 3) preparing for a deposition 4) etc. etc. etc---issues can always arise that you hadn't envisioned, if you've got decent opposing counsel.

For that reason, it's always helpful to have the entire deposition transcript at your disposal as opposed to a few pages here and a few pages there.

And, the judge doesn't have to read the entire attached transcript--just the pages referenced in your affidavit/memo.

Another problem I've encountered with the splice and dice approach is that your secretary inevitably leaves out at least one page. You end up spending more time checking and double checking the pages attached than you'd need to do if you simply attached the entire transcript.

Of course, much of this could be avoided if you simply obtained affidavits from your own clients that set forth clearly and concisely exactly what you needed for your proof.

You'd probably have to use deposition exhibits for the testimony of the other side, but at least using affidavits from your own clients limits the amount of paperwork.

But of course, that's just my humble opinion;)

Scott Greenfield

I agree that affidavits, directed toward the specific issues, is far more effective than depositions. I guess I was talking about the bulk issue. Using depositions in lieu of crafting an affidavit is often just a lazy approach.

But I'm a criminal defense lawyer. What do I know about EBTs?

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