In Rosenblatt v. St. George Health & Racquetball Associates, LLC, No. 2011-10114, 2014 WL 1688149 (N.Y. App. Div. Apr. 30, 2014), the Appellate Division, Second Department, provided a protocol for determining when courts may decide matters on the basis of arguments not raised by the parties. In doing so, the court analyzed the arcane question of the difference between a certified and a verified deposition.
Claiming that she had been injured after falling off an exercise ball during morning body sculpting class at defendant’s gym, plaintiff Eleanor Rosenblatt sued alleging failure to adequately train, supervise, or provide an appropriate instructor. Following discovery, defendant moved for summary judgment on the grounds of an express assumption of the risk. In support, defendant submitted an unsigned and uncertified copy of plaintiff’s deposition transcript and an unsigned copy of the instructor’s deposition. Relying on the rule that the proponent of summary judgment must tender admissible evidence to show the absence of any material fact, plaintiff argued that the copies of the deposition transcripts were “not in evidentiary form given that they are unverified and unsubscribed.” Id. at *2.
Finding that the deposition was not certified by the court reporter and therefore concluding that it was inadmissible, the motion court denied summary judgment. The Second Department disagreed on the basis that the plaintiff’s failure to raise these arguments before the motion court precluded that court from denying the motion on those grounds. The motion court was wrong to sua sponte hold that plaintiff’s deposition transcript was inadmissible. Instead, “the plaintiff’s objection to the transcript as ‘unverified’ cannot be viewed as an objection to its lack of certification.” Id. at *4. As the Second Department reasoned: “[a] verification requires a deponent to swear to the truth of statements, whereas a certification requires the officer to state that the deponent was sworn by him or her and that the officer’s transcription of the witness’s testimony is accurate. A certification and a verification are not synonymous and, therefore, the plaintiff’s assertion that her deposition transcript was unverified was not equivalent to a claim that her deposition transcript was uncertified.” Additionally, the fact that the plaintiff did not challenge the accuracy of her deposition transcript meant that the lack of a signature did not necessarily render the deposition transcript inadmissible, as defendant had followed the procedure in the CPLR to have an unsigned deposition considered to be admissible evidence. Thus, the motion court erred in concluding that plaintiff’s deposition transcript was inadmissible without affording defendant the opportunity to argue these points. The Court reasoned that courts “are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made.” Id. at *5 (citation omitted).
In reaching this result, it was necessary for the Second Department to distinguish its recent decision in Tirado v. Miller, 75 A.D.3d 153, 160, 901 N.Y.S.2d 358 (2010). Tirado held that “a court may decide a nondispositive discovery motion upon grounds other than those argued by the parties in their submissions.” Id. Because in this case the defendant’s motion was for summary judgment and thus dispositive in nature, a court was not permitted to deny the motion on grounds the parties did not themselves argue.
In the Second Department—at the least—although a court may decide a non-dispositive motion on grounds not briefed by the parties, that choice is foreclosed on a dispositive motion. If a court believes that an issue not raised by the parties can resolve a dispositive motion, then the court must give the parties an opportunity to brief it. Failure to do so would constitute reversible error.