Page 32 - NY Cooperator October Expo 2019

32 THE COOPERATOR — OCTOBER 2019 COOPERATOR.COM The Andrews Organization, Inc. · 666 Broadway · 12th Floor · New York NY 10012 Balance Sheet | Fannie Mae | Freddie Mac | FHA/HUD When you choose Capital One Multifamily Finance ® , you’re working with a team that understands New York’s real estate market from the stoop to the rooftop, backed by the expertise of a top 10 U.S. bank . Our New York-based 1 team of financing specialists provide tailored solutions to help turn your vision into action. capital.one/multifamily You see farther than others. Shouldn’t your lender? 1 Note: Rank excludes banks with high non-loan asset concentrations: Goldman Sachs, Morgan Stanley, BONY, State Street, Charles Schwab. Ranks as of 6/30/2019. Based upon total gross loans and total aggregated domestic deposits for bank holding company. Sources: SNL, FDIC, company reports. Products and Services are offered by Capital One, N.A., Member FDIC © 2019 Capital One. MANAGEMENT Why Am I Being Deposed? Unit Owner Depositions in Transition Litigations – a Primer BY MARTIN CABALAR AND SARAH KLEIN Th e unit owners in your condominium case typically comes down to a 'battle of the have been noticed for deposition in the experts.' Th e association’s expert will opine pending transition litigation. Now they as to the cause of the construction defects have come to you, the property manage- ment team, with questions. What should defects, and how much repairs will cost. Th e they expect at the deposition? What kinds defendants – meaning those responsible for of questions can they be asked? Did they do the design and construction of the condo- something wrong? Will they have to testify minium – will have their own experts to at trial? While these are all terrifi c questions, refute the association’s expert(s). Th e tes- there is no reason for unit owners to stress timony of a unit owner, however, is typi- over the fact that they will be deposed. Th e fi rst question in unit owners’ minds of a defect, such as a leak or a crack. Th is is usually, 'Why am I being deposed?' Th e could be compared to a medical malpractice answer varies depending on the particular case, where an injured plaintiff may testify circumstance, but unit owners are typically about the symptoms they're suff ering from, deposed because they reported some issue but ultimately would not provide an opin- in their unit, or with the common elements ion as to the cause of those symptoms. Th at that the defendants wish to further explore. testimony must come from an appropriately Most unit owners will not have been de- posed before, and may be wondering what the process entails. Essentially, a deposition fect claims. Because their lay observations of is a question-and-answer session between defects in their own units or in the common an individual and opposing counsel in a elements do not qualify as expert opinions, lawsuit before trial. Its primary purpose is under normal circumstances a unit owner's to develop the factual record for trial. In a testimony should not make or break the as- transition litigation, the attorney (or attor- neys, depending how many parties there are of cause, responsibility or the appropriate in the case) will ask the unit owner a series manner in which those defects should be of questions which she will need to answer repaired. Th us, while a judge or jury, as the to the best of her ability. Although depositions oft en occur in at- torney’s offi ces or other locations outside ciding the case, the weight of the testimony the courtroom, everything the unit owner considered is that of the experts. says is under oath as if she were sitting in a courtroom at trial. For that reason, it is ex- tremely important that unit owners tell the to deal with in their units as a result of de- truth at their depositions. Th e facts are the fi cient construction, and may want to vol- facts. Although unit owners may be tempted unteer information that they believe will to exaggerate their testimony in a misguided help the association’s case. While their frus- attempt to help the association’s case, the re- ality is that doing so can only hurt the as- sociation. Any inaccurate or contradictory not the correct forum in which to build the testimony given during a deposition can be association’s case. Th e association will have used to impeach that witness at trial, which an opportunity to develop its own case- will hurt that witness’ credibility and ulti- mately undermine the association’s case. nent’s responsibility is to truthfully answer Th e bottom line is that there is nothing for the question that is asked; nothing more is a unit owner to be stressed about, because required. We do not recommend that unit their only obligation is to tell the truth. It is important for unit owners to un- derstand that in a transition litigation, the being alleged, who is responsible for those cally limited to observing the symptom(s) qualifi ed expert. Th e same holds true for construction de- sociation’s case, and off ers little in the way case may be, will have to consider and com- pare all of the testimony in ultimately de- Oft en times, unit owners may feel upset or even outraged at the issues they have had tration is certainly understandable, it's im- portant to advise them that a deposition is in-chief at trial. In a deposition, the depo- owners volunteer information – including attempting to explain their answers – if the continued on page 35 See us at Booth 408 See us at Booth 524