Wade Clark Mulcahy LLP

Ever hear the saying, “I used to be indecisive, but now I’m not so sure.” Contradictory, isn’t it? Often, we find ourselves contradicting what we say originally. Usually it’s not a big deal, but if it’s on the record, it could cost you your case.

Defendant in Richard E. Bliwas v Bernard A. Paul would agree after the Supreme Court, Appellate Division denied summary judgment.  In this case, Richard Bliwas was injured when his bicycle collided with a Transit Authority bus operated Bernard Baul.  Plaintiff was riding eastbound on Metropolitan Avenue in Brooklyn and Paul’s vehicle was traveling westbound.  The defendants filed for summary judgment contending that the accident was caused by the plaintiff, who allegedly crossed a double yellow line and struck their vehicle.  The Supreme Court denied the motion, and Defendants appealed.  On appeal, the Appellate Division affirmed, holding that Paul’s deposition testimony was self-contradictory.

At his deposition, Paul repeatedly testified that: (1) he was in the right lane; (2) Plaintiff struck the right or passenger side of his vehicle; (3) he did not see any vehicles double parked on the eastbound side of Metropolitan Avenue; and (4) he walked around his vehicle to find the plaintiff on the ground on the passenger side.

Following a break in the testimony, Paul used a Transit Authority memorandum and accident report to refresh his memory.  Thereafter he testified that: (1) plaintiff was on the driver’s side or left side; (2) plaintiff was in the left eastbound lane after the accident: (3) that the driver’s side mirror of his vehicle was cracked; and (4) there were double-parked vehicles in the eastbound direction.

Now, you can’t say one thing and then ask the court to trust your word if you’ll change what you say later. Be careful on the record, it’s written in stone.