§ 3117 — Use of depositions

New York § 3117

• Jurisdiction: New York
• Law CVP: Civil Practice Law & Rules
• Art. 31: Disclosure

Text

Rule 3117. Use of depositions. (a) Impeachment of witnesses; parties;\nunavailable witness. At the trial or upon the hearing of a motion or an\ninterlocutory proceeding, any part or all of a deposition, so far as\nadmissible under the rules of evidence, may be used in accordance with\nany of the following provisions:\n 1. any deposition may be used by any party for the purpose of\ncontradicting or impeaching the testimony of the deponent as a witness;\n 2. the deposition testimony of a party or of any person who was a\nparty when the testimony was given or of any person who at the time the\ntestimony was given was an officer, director, member, employee or\nmanaging or authorized agent of a party, may be used for any purpose by\nany party who was adversely interested when the deposition testimony was\ngiven or who is adversely interested when the deposition testimony is\noffered in evidence;\n 3. the deposition of any person may be used by any party for any\npurpose against any other party who was present or represented at the\ntaking of the deposition or who had the notice required under these\nrules, provided the court finds:\n (i) that the witness is dead; or\n (ii) that the witness is at a greater distance than one hundred miles\nfrom the place of trial or is out of the state, unless it appears that\nthe absence of the witness was procured by the party offering the\ndeposition; or\n (iii) that the witness is unable to attend or testify because of age,\nsickness, infirmity, or imprisonment; or\n (iv) that the party offering the deposition has been unable to procure\nthe attendance of the witness by diligent efforts; or\n (v) upon motion or notice, that such exceptional circumstances exist\nas to make its use desirable, in the interest of justice and with due\nregard to the importance of presenting the testimony of witnesses orally\nin open court;\n 4. the deposition of a person authorized to practice medicine may be\nused by any party without the necessity of showing unavailability or\nspecial circumstances, subject to the right of any party to move\npursuant to section 3103 to prevent abuse.\n (b) Use of part of deposition. If only part of a deposition is read at\nthe trial by a party, any other party may read any other part of the\ndeposition which ought in fairness to be considered in connection with\nthe part read.\n (c) Substitution of parties; prior actions. Substitution of parties\ndoes not affect the right to use depositions previously taken. When an\naction has been brought in any court of any state or of the United\nStates and another action involving the same subject matter is afterward\nbrought between the same parties or their representatives or successors\nin interest all depositions taken in the former action may be used in\nthe latter as if taken therein.\n (d) Effect of using deposition. A party shall not be deemed to make a\nperson his own witness for any purpose by taking his deposition. The\nintroduction in evidence of the deposition or any part thereof for any\npurpose other than that of contradicting or impeaching the deponent\nmakes the deponent the witness of the party introducing the deposition,\nbut this shall not apply to the use of a deposition as described in\nparagraph two of subdivision (a). At the trial, any party may rebut any\nrelevant evidence contained in a deposition, whether introduced by him\nor by any other party.\n