WYSE v. AMTRUST NORTH AMERICA INC (2025)

Order, Supreme Court, New York County (Louis L. Nock, J.), entered July 9, 2024, which granted defendant's motion to strike corrections to plaintiff's expert's errata sheet and awarded costs and attorneys’ fees, unanimously modified, on the law, to vacate the award of attorneys’ fees, and otherwise affirmed, without costs.

Supreme Court correctly granted defendant's motion to strike paragraph two of the errata sheet.  Plaintiff's expert's corrected responses to counsel's questions, recalculating plaintiff's bonus amount, is a material and critical change to his testimony, and appears tailored to avoid the consequences of his earlier testimony that the bonus amount was actually lower because the Written/Earned Premium should have been reduced by the same percentage applied to the Earned Premium (see Moore–Reason v. Manhattan Coll., 234 A.D.3d 617, 224 N.Y.S.3d 414 [1st Dept. 2025];  Figueroa v. Relgold, LLC, 226 A.D.3d 425, 425, 208 N.Y.S.3d 168 [1st Dept. 2024];  cf.  Mojica v. Church of the Immaculate Conception, 219 A.D.3d 1252, 1253, 195 N.Y.S.3d 479 [1st Dept. 2023];  Cillo v. Resjefal Corp., 295 A.D.2d 257, 743 N.Y.S.2d 860 [1st Dept. 2002]).  The expert's proffered reasons for the change – that opposing counsel's questions confused and distracted him – are inadequate (see Torres v. Board of Educ. of City of N.Y., 137 A.D.3d 1256, 1257, 29 N.Y.S.3d 396 [2d Dept. 2016]), especially considering that defense counsel's conduct during the deposition was neither harassing nor improper (see e.g. Corsini v. U–Haul Intl., 212 A.D.2d 288, 630 N.Y.S.2d 45 [1st Dept. 1995], lv dismissed 87 N.Y.2d 965, 642 N.Y.S.2d 192, 664 N.E.2d 1254 [1996]).

However, the court improvidently awarded defendant attorneys’ fees, as it failed to set forth the statute or court rule authorizing the sanction (see Junmei Zhang v. City of New York, 222 A.D.3d 445, 446, 199 N.Y.S.3d 70 [1st Dept. 2023]).