Civil Practice Law & Rules 3117
CPLR 3117: Use of Depositions
Use of depositions
(a) Impeachment of witnesses; parties; unavailable witness.
At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used in accordance with any of the following provisions:
1. any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness;
2. the deposition testimony of a party or of any person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee or managing or authorized agent of a party, may be used for any purpose by any party who was adversely interested when the deposition testimony was given or who is adversely interested when the deposition testimony is offered in evidence;
3. the deposition of any person may be used by any party for any purpose against any other party who was present or represented at the taking of the deposition or who had the notice required under these rules, provided the court finds:
(i) that the witness is dead; or
(ii) that the witness is at a greater distance than one hundred miles from the place of trial or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or
(iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or
(iv) that the party offering the deposition has been unable to procure the attendance of the witness by diligent efforts; or
(v) upon motion or notice, that such exceptional circumstances exist as to make its use desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court;
4. the deposition of a person authorized to practice medicine may be used by any party without the necessity of showing unavailability or special circumstances, subject to the right of any party to move pursuant to section 3103 to prevent abuse.
(b) Use of part of deposition.
If only part of a deposition is read at the trial by a party, any other party may read any other part of the deposition which ought in fairness to be considered in connection with the part read.
(c) Substitution of parties; prior actions.
Substitution of parties does not affect the right to use depositions previously taken. When an action has been brought in any court of any state or of the United States and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest all depositions taken in the former action may be used in the latter as if taken therein.
(d) Effect of using deposition.
A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use of a deposition as described in paragraph two of subdivision (a). At the trial, any party may rebut any relevant evidence contained in a deposition, whether introduced by him or by any other party.
This section of the Civil Practice Law and Rules is provided as part of a free educational service by J. Douglas Barics, attorney at law for reference only. Statutes and codes such as CPLR 3117 are frequently amended, and no representation is made that the above version of CPLR 3117 is current. Updated statutes and codes may be available at the New York State Legislature Website. No statute should be relied on without understanding controlling case law which may further interpret it. An attorney should be consulted for legal advice.
J. Douglas Barics, Esq. – Divorce, family, matrimonial, trial and appeals lawyer in Long Island, New York.