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The Court of Appeals, Wachtler, J.

, held that by reading truck driver's pretrial deposition in


evidence the plaintiff did not make the truck driver his own witness, that although by calling the
driver to testify plaintiff made him his own witness it did not follow that plaintiff had adopted or
become bound by the witness' version of the facts and that although a party may not generally
impeach the credibility of his own witness impeachment is not to be confused with binding
testimony.
Spampinato v. A. B. C. Consol. Corp., 35 N.Y.2d 283, 319 N.E.2d 196 (1974)

The charge in fact was erroneous in two respects (1) in holding that the plaintiff had made the
witness his own by reading the deposition and (2) in stating, in effect, that the consequence of
this was to bind the plaintiff to the witness's version of the facts.
Although CPLR 3117 recognizes that a party may under certain circumstances make a person
his own witness' by using the witness's pretrial deposition, the circumstances are few and
narrowly defined (CPLR 3117, subd. (d)). He does not of course do so by merely taking a
deposition, or even by using the deposition at trial for impeachment purposes alone. He only runs
the risk of adopting the witness when he uses the deposition as evidence in chief, or, to use the
words of the statute, for any purpose other than that of contradicting or impeaching the
deponent (CPLR 3117, subd. (d)). However, and here the statute is quite explicit, this shall not
apply to the use of a deposition as described in paragraph two of subdivision (a) which includes
the deposition of a party or any one who at the time of taking the deposition was an officer,
director, member, or managing or authorized agent of a party, or the deposition of an employee
of a party produced by that party (CPLR 3117, subd. (a), par. 2). Since Stark was a party to the
action, the plaintiff was entitled to use his deposition as evidence in chief (CPLR 3117, subd. (a),
par. 2) and the court erred in holding that by doing so he made the witness his own (CPLR 3117,
subd. (d)).
Spampinato v. A. B. C. Consol. Corp., 35 N.Y.2d 283, 286-87, 319 N.E.2d 196, 197 (1974)

McKinney's CPLR Rule 3117


Rule 3117. 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.
C3117:8 Satisfying the (a)(3) Requirements.
First Department Precludes Use of Testimony from General Municipal Law Section 50-h
Hearing Based on Failure to Satisfy Requirements in CPLR 3117(a)(3)
In Barnes v. City of New York, 44 A.D.3d 39, 840 N.Y.S.2d 582 (1st Dep't 2007), lv. den. 10
N.Y.3d 711, 860 N.Y.S.2d 483 (2008), the City appealed from a judgment entered after a verdict
awarding plaintiff damages for an alleged assault by an off-duty New York City police officer.
Plaintiff, who was paralyzed as a result of the incident, was incarcerated in New Jersey at the
time of the trial. His counsel requested that the court allow him to read selected portions of a
transcript of plaintiff's testimony, provided at a General Municipal Law (GML) 50-h hearing,
to the jury.

If a potential litigant serves a notice of claim upon a municipal entity under General Municipal
Law section 50-e, that entity may be entitled to conduct an examination ... upon oral questions
under General Municipal Law section 50-h(1). This examination resembles an EBT
(examination before trial) in a supreme court action in many respects, but there are substantial
distinctions. See 2008 Supplementary Practice Commentaries, CPLR 3113, C3113:2. The
General Municipal Law specifically provides that the transcript of a 50-h hearing may be read at
trial. See GML 50-h(4) (A transcript of the testimony taken at an examination pursuant to the
provisions of this section may be read in evidence by either party, in an action founded upon the
claim in connection with which it was taken, at the trial thereof or upon assessment of damages
or upon motion.).
In Claypool v. City of New York, 267 A.D.2d 33, 699 N.Y.S.2d 363 (1st Dep't 1999), plaintiff
sued New York City and several private defendants. The private defendants had not been notified
of plaintiff's 50-h hearing and were not present for it. Plaintiff then died and her executors were
substituted as plaintiffs. The supreme court granted the private defendants' motion to dismiss the
complaint. The court held that, as to the private defendants, decedent's testimony at the General
Municipal Law 50-h hearing was inadmissible hearsay that could not be used to support the
allegations of the complaint or the City's cross claims. The First Department affirmed, holding
that testimony that constitutes hearsay is admissible as evidence in chief only if a hearsay
exception is available. Id. at 35, 699 N.Y.S.2d at 365. Under the circumstances in Claypool, the
transcript of the General Municipal Law 50-h hearing was only admissible against the City,
because it was the only other party that attended the hearing. CPLR 3117(a)(3); see Weinberg v.
City of New York, 3 A.D.3d 489, 490, 770 N.Y.S.2d 431, 432-33 (2d Dep't 2004) (The testimony
given by the plaintiff's decedent at the hearing conducted pursuant to General Municipal Law
50-h cannot be used as against the defendants ... since they were not notified about the hearing
and were not present for the testimony given by the decedent.).
In Barnes, the trial court permitted the reading of the transcript of plaintiff's testimony from a 50h hearing in lieu of plaintiff's live testimony, despite the City's objection that the requirements of
CPLR 3117(a)(3) had not been satisfied. Plaintiff's attorney successfully argued that plaintiff was
an unavailable witness at the trial because he had been sent from the Bronx Psychiatric Center to
a rehabilitation center in Lincoln Park, New Jersey.
The First Department, citing Claypool, reiterated that the transcript of a General Municipal Law
Section 50-h hearing can only be used in lieu of live testimony if one of the five requirements in
CPLR 3117(a)(3) is satisfied. A sub-section that was at issue in Barnes, CPLR 3117(a)(3)(ii),
provides that a deposition of a party may be used if the court finds 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. The
Court of Appeals has noted that if a party-witness voluntarily leaves the state and refuses to
return for trial, the party has procured her own absence and cannot satisfy CPLR 3117(a)(3)(ii).
Dailey v. Keith, 1 N.Y.3d 586, 774 N.Y.S.2d 105 (2004).
While the trial court apparently concluded that plaintiff was removed from New York State
involuntarily, the First Department found no evidence before the court that plaintiff was ever
civilly committed. The court noted that plaintiff never argued the point and failed to maintain
that he was not free to return to New York to testify. Furthermore, plaintiff's counsel never
disputed the City's assertion that plaintiff was in a nursing home, not a psychiatric facility, and

that he was not confined. The court concluded, therefore, that there was no evidence that
plaintiff was not free to return to this jurisdiction to testify while emphasizing that it was his
burden to show that his failure to return was involuntary. Barnes, 44 A.D.3d at 45, 840 N.Y.S.2d
at 587.
The court also rejected plaintiff's argument that he was unable to appear for trial because of a
debilitating mental disease and physical disability and, therefore, that his testimony from the 50h hearing should have been admitted pursuant to CPLR 3117(a)(3)(iii). This subdivision permits
the reading of a deposition where the witness is unable to attend or testify because of age,
sickness, infirmity or imprisonment. CPLR 3117(a)(3)(iii). Plaintiff offered no evidence that his
physical condition prevented him from returning to New York, and his reliance on his
psychological condition contradicted the court's finding that he was competent to testify, which
he did not challenge. The Barnes court also rejected plaintiff's claim that his presence at the trial
would have been disruptive, noting that if plaintiff chose to refuse to take his medicine, thereby
rendering himself unable to testify, or if he he was unresponsive or uncooperative, his conduct
would equate to a voluntary absence from trial to avoid testifying. Barnes, 44 A.D.3d at 46, 840
N.Y.S.2d at 587.
Based on the above reasoning, the First Department concluded that the trial court committed
reversible error when it allowed the reading of plaintiff's testimony from the 50-h hearing at trial.
In light of the importance of the defendant's fundamental right to cross examination on several
issues in the case, and plaintiff's deliberate and calculated strategy in not appearing, the court
reversed a substantial judgment in plaintiff's favor and dismissed the complaint. Id. at 47, 840
N.Y.S.2d at 588. The court emphasized that [t]he tenor of all of CPLR 3117(a)(3) is that a
person capable of testifying in person and subject to judicial process or a party's control so as to
compel the testimony should be on display before the trier of fact and subjected to the rigors of
confrontation and cross-examination. Id., 840 N.Y.S.2d at 588.
The result in Barnes vividly demonstrates the importance of laying a thorough foundation at trial
when seeking to introduce testimony from a deposition or 50-h hearing pursuant to CPLR
3117(a)(3). Even if the proponent is able to convince the trial court that the transcript may be
admitted, she will want to ensure that all possible arguments are made on the record to buttress
the ruling on an appeal.
Furthermore, if either the claimant or the City reasonably anticipate using the transcript of a 50-h
hearing against another potential party, it is advisable to place them on notice of the hearing and
invite them to attend. This may assist in establishing the preliminary requirements in CPLR
3117(a)(3) at trial. See also Rivera v. New York City Transit Authority, 54 A.D.3d 545, 547, 863
N.Y.S.2d 201, 202, (1st Dep't 2008) (transcript of 50-h hearing otherwise satisfying the
requirements of CPLR 3117(a)(2) still is not admissible unless it is shown that, as to each party
against whom the deposition is to be used, it falls within an exception to the rule against
hearsay.).
PRACTICE COMMENTARIES
by Patrick M. Connors
Prof. Connors acknowledges the earlier commentaries Prof. David Siegel wrote for this section.
See the Preface for an explanation of the relationship between those commentaries and the
present ones.
In General
C3117:1 Use of Depositions, Generally.
Subdivision (a)

C3117:2 Use for Impeachment.


C3117:3 Parties Who Can Use a Deposition Under CPLR 3117(a)(2).
C3117:4 Depositions Subject to Use Under CPLR 3117(a)(2).
C3117:5 Deposing a Party as a Witness.
C3117:6 Omnibus Use of Any Deposition.
C3117:7 Laying a Foundation for Use of Deposition.
C3117:8 Satisfying the (a)(3) Requirements.
C3117:8A. Dispensing with a Foundation for Medical Depositions.
Subdivision (b)
C3117:9 Using Only Part of Deposition.
Subdivision (c)
C3117:10 Substitution of Parties.
C3117:11 Depositions from Prior Actions.
Subdivision (d)
C3117:12 Effect of Using Deposition.
In General
C3117:1 Use of Depositions, Generally.
CPLR 3101 is the king of the disclosure article and its rule requires full disclosure of all relevant
information. CPLR 3101(a); see Commentary C3101:5. CPLR 3117, which details the permitted
use of depositions at trial, is one of CPLR 3101's most loyal and effective foot soldiers. The
things disclosed upon a deposition may have many uses to the party who sought and secured it,
including leads to other materials and testimony. CPLR 3117 is primarily concerned with the
ultimate use that may be made of a deposition at the trial itself or at any preliminary stage of the
litigation, such as a motion. As detailed below, the uses are limited and important distinctions are
made between a party and a nonparty witness.
The rule--and we will adopt its terminology for future discussion--uses person to denote either
a party or nonparty witness, without distinction. Party as used in the rule excludes a nonparty
witness. The word witness is used to refer to the deponent, whether a party or a nonparty, when
the context does not indicate a distinction between them.
In the course of taking a deposition, the court may rule on objections to specific questions if
requested. See Commentary C3124:4, below. If there were disputes about given questions during
the deposition that have not yet been resolved, and these questions remain unanswered, the
examining party may go as far as possible with the deposition and then afterwards draw up a list
of all of the questions the deponent refused to answer and make a motion for a protective order.
CPLR 3113(b); see Commentary C3113:2, above. The court can then rule on whether the
questions must be answered and, if necessary, order a further deposition.
With reference to the questions that the deponent did answer, and to the issue of the use that may
be made of these questions and answers at the trial or on a motion, there is a different problem.
The court will rarely determine, as upon an ordinary motion before trial, the prospective use that
can be made of the deposition at the trial proper. Absent some pressing need for such an advance
ruling, these determinations will be left to the judge to make at the trial itself at the juncture
within the trial at which the particular deposition questions and answers are sought to be used.
It has already been shown that an omission to raise a substantial evidentiary objection to a
question at a deposition session is not a waiver of the objection. CPLR 3115(a), (d); see
Commentary C3115:1, above. The objection may, therefore, be interposed at the trial when the

deposition testimony is offered and the court will rule on it notwithstanding that no prior attempt
was made to raise the objection.
If it appears that the depositions will be relied upon heavily at the trial and that a special session
with the trial judge would be helpful to ascertain the uses that may be made of the deposition at
the trial, perhaps with rulings on specific evidentiary objections not previously made, the party or
parties seeking these early rulings can ask for them when the trial opens. See, e.g., Albright v.
Town of Manlius, 30 A.D.2d 1037, 294 N.Y.S.2d 869 (4th Dep't 1968). If the trial judge agrees
that such an early determination will be helpful and that a substantial amount of time will be
needed to make these rulings, and a jury is present, the jury can be sent out or, indeed, dismissed
for the day and told to return at an adjourned time. This procedure would be appropriate in
instances in which the trial itself is likely to be an extended one. The judge should take into
consideration the convenience of parties, witnesses, and jurors who are already in the courtroom
expecting the trial to proceed. Matters of this kind are almost entirely in the discretion of the trial
judge. Judges are, however, hesitant to issue preliminary rulings that might simply be advisory in
nature. Frequently, objections and rulings of this sort can only be made at the moment the
deposition testimony is sought to be introduced, and based on the record existing at that time.
Subdivision (a)
C3117:2 Use for Impeachment.
Once the deponent is on the witness stand at the trial, whether that person is a party or a nonparty
witness, the deposition may be used by any side to impeach the testimony of the deponent as a
witness. CPLR 3117(a)(1). Thus, any substantial inconsistency between what the witness said in
the deposition and what she says at the trial may be exploited by using the deposition.
In this regard, it is not necessary that opposing parties have been notified of the taking of the
deposition. Under paragraph 1 of subdivision (a), in contrast with paragraph 3, the deposition is
not being offered for the truth of the facts deposed to. It is not being used, in other words, as
evidence-in-chief. It is being used only to contradict, or impeach, the deponent on the
witness stand. It confronts the witness with a statement made at some earlier time that contradicts
the statement made on the witness stand, and in this case the deposition is merely the source of
the contradictory statement. The matter read from the deposition itself is generally not direct
evidence of the fact it states. It merely comes in to establish that the witness is not worthy of
belief because she has provided, for example, two versions of the same incident.
The practical effect, so the examiner hopes, is that in the eyes of the trier of fact it will make the
witness out to be a liar. The trier of fact will then reject what the witness has testified to in the
courtroom and accept the contradictory statement as the fact. The deposition statement, if
contrary to the open-court testimony, will then become the fact that the trier of fact believes. This
avenue is paved by human nature and it indirectly results in the deposition statement being taken
as the source of the truth. The CPLR route and the rules of evidence do not contemplate direct
adoption of the deposition fact as the true one when the deposition is used only for impeachment.
If the impeachment is successful, however, the indirectness of the victory is of small moment to
the victor.
A successful impeachment can also, of course, mark the witness as generally untrustworthy,
invoking the maxim whereby the jury or other trier of fact can disregard all of the witness's
testimony: falsus in uno, falsus in omnibus.
No foundation, such as is necessary to use the deposition as evidence-in-chief under CPLR
3117(a)(3), is needed for its impeachment use under CPLR 3117(a)(1). See Commentary
C3117:7, below.

At first blush, CPLR 3117(a)(1) appears to challenge reality by permitting the impeachment use
of a deposition even if there are parties present in the case who were not notified of its taking. If
it impeaches successfully, it can be a key element in a verdict or decision against the unnotified
party. Had that party been notified of the deposition and attended it, that party might have
elicited a clarification in the deposition itself, thus watering down the impact that an unclarified
statement can have in an ex-parte deposition. We can assume that any favorable statement,
accurate or not, that comes out at a deposition at which no adverse party is present will be
accepted, recorded, and quickly bypassed if the examining attorney is a skilled one. Were an
equally skilled adversary present, a further probing in cross examination under CPLR 3113(c)
could diminish, perhaps even to the vanishing point, the impact of the statement.
In sum, the language in CPLR 3117(a)(1) does not require that adverse parties receive notice of a
deposition before it can be used to impeach. There are, however, other provisions of the CPLR
that are applicable in these circumstances and failure to comply with them may result in the
exclusion of the testimony. CPLR 3107 requires that every party to an action receive twenty
days' notice of an oral deposition, unless the court orders otherwise. The deposition may have
required the service of a deposition notice on a party which, in turn, would have required service
of the notice on all other parties. CPLR 2103(e). See also CPLR 2303(a) (requiring service of
subpoena duces tecum on each party who has appeared in the action). In addition, and more to
the point, all of the uses detailed in CPLR 3117(a) are still subject to the rules of evidence. The
rules of evidence may prohibit the use of deposition testimony to impeach where an aggrieved
party who did not receive notice of the deposition objects. In sum, a party who fails to provide
notice to all parties of a deposition risks the ability to use the testimony at trial or on a motion,
even for impeachment.
C3117:3 Parties Who Can Use a Deposition Under CPLR 3117(a)(2).
Without the foundation necessary under CPLR 3117(a)(3), paragraph 2 permits, among other
things, a party's deposition to be used for any purpose by any adversely interested party. This
includes perhaps the most important of all the uses to which a deposition may be put: evidencein-chief of the facts in the deposition testimony. CPLR 3117(a)(2) also permits the use of a
deposition of a former party and others having a relationship with a party. See Commentary
C3117:4, below.
The deposition testimony may be used 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. CPLR 3117(a)(2). The phrase used is adversely interested, which makes
it unnecessary that the parties involved appear on opposite sides of the versus in the caption of
the case. If the point for which the deposition of defendant A is being used by defendant B
involves a disputed issue between them, B may use A's deposition under paragraph (a)(2). For
example, one codefendant may be adverse to another for purposes of apportionment of fault as
against the plaintiff.
Although a party may have his own pretrial deposition taken, see Commentary C3101:13, above,
that party's use of the deposition at the trial is severely restricted. He may not use it for any
purpose under CPLR 3117(a)(2), as may his adversary. If the party's lawyer can meet the
requirements of CPLR 3117(a)(3), which apply to a party as well as to a nonparty witness, he
may use the party's own deposition for any purpose. If he can't, he must turn to CPLR 3117(b),
which permits a party to read in relevant portions of his own deposition only after an adverse
party has made use of it. See Commentary C3117:9, below.

As noted above, CPLR 3117(a)(3) only permits a deposition of a nonparty to be used against a
party who had notice of the deposition's taking. CPLR 3117(a)(1) and (2) do not contain that
restriction. See Commentary C3117:2, above. If P has taken D-1's deposition without notifying
D-2, the language of CPLR 3117(a)(2) appears to permit P to read that deposition against D-1
notwithstanding that D-2 did not have notice. The introductory language in CPLR 3117(a) may
prohibit this use, however, if it is prohibited under the rules of evidence. Id. If the testimony is
admitted, an instruction would be necessary, if sought by D-2, precluding the trier of fact from
considering such deposition as against D-2. If D-1's testimony is damaging to D-2, however,
such an instruction is just an application of the quixotic fiction that the jury will nicely
compartmentalize their minds and hide their knowledge from the compartment that is supposed
to be considering D-2. The only possible justification for permitting such a use of D-1's
deposition if there are unnotified parties present in the case is that the adverse status of P vis-vis D-1 will itself assure that all procedural safeguards have been followed and that the
testimony has been elicited under the watchful eyes of attentive adversaries.
This rationale may not hold when there is a non-adverse relationship between P and D-1 or when
their mutual interest on a given issue does not parallel the interest of D-2. In the latter situation,
the unnotified D-2 should call the facts to the court's attention and ask it to exercise its protective
order powers under CPLR 3103(a). The court can suppress the deposition, see CPLR 3103(c),
and even order that a new deposition be scheduled during the trial, on proper notice to D-2 and
all other parties. See CPLR 3102(d). This should be done whenever a technical application of
CPLR 3117(a)(2) would result in an injustice to an unnotified party, especially an injustice that
cannot be effectively cured by an instruction to the jury.
There are other reasons to exclude D-1's testimony, which are explored in the Commentary to
CPLR 3117(a)(1). See Commentary 3117:2, above.
Time of Using Adversary's Deposition Controlled by Court
Although CPLR 3117(a)(2) allows a party to use an adverse party's deposition for any purpose,
the trial judge retains discretion in determining when the deposition may be read. The Court of
Appeals encountered sharp disagreement when applying this principle in Feldsberg v. Nitschke,
49 N.Y.2d 636, 427 N.Y.S.2d 751 (1980), and on a point probably decisive of the plaintiff's case.
P's decedent in Feldsberg was killed when struck by D's camper vehicle as it left a highway. A
key issue was how far the camper was from the exit point when it turned from the traffic lane. P
called D as a witness and, upon completing the examination, asked that D return at a later time to
testify about photographs taken at the scene of the accident. When D returned to the stand at that
later time, P sought to go back to the subject of distances, not sticking exclusively to the
photographs as a topic. P was apparently trying to show some inconsistency between D's in-court
testimony and D's deposition. The court barred P from returning to the subject, holding that it
had been concluded earlier.
The majority of the Court of Appeals treated this as a matter of discretion and held that CPLR
3117(a)(2) does not divest the trial judge of such discretion. In the view of the three-judge
minority, however, the trial judge had held that the plaintiff elected--as a matter of law--the point
within the litigation at which to read from the defendant's deposition and had thus waived the
right to return to it for the earlier purpose. Agreeing with the majority that the matter is one of
discretion, the dissenting judges protested that the trial judge did not treat it as such, but rather as
a rigid legal issue of election.
C3117:4 Depositions Subject to Use Under CPLR 3117(a)(2).

Recognizing that the purpose of disclosure is to advance the function of a trial to ascertain truth,
see Commentary C3101:4, above, CPLR 3117(a)(2) allows the use, for any purpose, of
depositions of people falling into one of three categories. The first two categories are comprised
of any party to the action or any person who was a party when the deposition was taken. The
third category of depositions that can be used for any purpose includes those of any person
who was an officer, director, member, employee or managing or authorized agent of a party at
the time the deposition was taken.
In setting forth the criteria for pretrial disclosure, CPLR 3101(a)(1) treats as a party anyone
who is an officer, director, member, agent or employee of that party. This, in effect, dispenses
with the special witness requirements imposed by CPLR 3101(a)(3) and (4) as a condition to
pretrial disclosure against a nonparty witness. The same persons are on the list appearing in
CPLR 3117(a)(2), thus allowing the depositions of those persons to be used by any party adverse
to the party of which the deponent was an officer, director, etc., at the time the deposition was
taken or at the time of trial.
Prior to the 1990's, a dispute existed about when the deposition of a party's employee may be
used at the trial as evidence-in-chief under CPLR 3117(a)(2) by an opposing party. A 1993
amendment resolved the dispute. All that need be shown is that the officer, employee, etc., was in
the party's employ at the time the testimony was given. That's the meaningful time for
ascertaining whether there was a sufficient rapport between the two to deem them one for
deposition purposes, regardless of what may have happened to the relationship afterwards.
A somewhat different problem subsisted if the deponent was no longer a party when the trial
rolled around. The deponent had since been eliminated from the action, such as by settlement or
summary judgment. Would another party still be able to use the prior party's deposition at the
trial as evidence-in-chief?
Some cases said no, e.g., State Univ. Constr. Fund v. Kipphut & Neuman Co., 159 A.D.2d 1003,
552 N.Y.S.2d 471 (4th Dep't 1990). Others said yes, e.g., Iheme v. Simmons, 148 Misc. 2d 223,
560 N.Y.S.2d 167 (N.Y. Civ. Ct. 1990). A 1996 amendment to CPLR 3117(a)(2) settled the issue
by allowing use of the deposition by remaining parties as long as it is shown that the requisite
adversity existed at the time of the deposition itself. The Advisory Committee, which sponsored
the amendment, stated that the deposition, if reliable in the first place, is surely no less reliable
merely because the deponent has since left the case. See 1996 Report of the Advisory Committee
to the Chief Administrative Judge, Dec. 1995, p.63.
A major concern of the committee was that requiring a showing that the deponent was still a
party at the time of the trial might contribute to discouraging settlements. The committee cites
the example of a plaintiff, P, considering a settlement with defendant A. P might hesitate because
the settlement could bar P's use of A's deposition against defendant B at the trial under the
otherwise generous terms of CPLR 3117(a)(2)--even though A and B as well as P were all
adverse when P took A's deposition and B had every opportunity to participate in the deposition
in an adversary capacity.
The deposition of anyone on the paragraph 2 list, whether an employee or otherwise, may not
be used by the employer under that paragraph if there is no adversity between the deponent and
employer. The employing or otherwise principal party would be limited to impeachment use of
the deposition under paragraph 1 or would have to satisfy the requirements of paragraph 3.
Otherwise, the party must await use of the deposition by an adverse party before being able to
read in connected parts pursuant to CPLR 3117(b).

There may be situations where an employee or officer deponent is actually a party to the lawsuit
and is adverse to the employer. If there is no adversity at the time of the deposition, adversity
may develop at the trial. In these circumstances, the employer may be able to use the employee's
deposition under CPLR 3117(a)(2).
C3117:5 Deposing a Party as a Witness.
Assume that P takes the deposition of defendant D-1 as a party, which can be done on mere
notice, and timely notifies defendant D-2. D-2 does not appear at the deposition, which P
afterwards seeks to use in evidence at the trial against both D-1 and D-2. It was held in Nixon v.
Beacon Transp. Corp., 239 A.D. 830, 264 N.Y.S. 114 (2d Dep't 1933), an old-law case, that P
may not use D-1's deposition against D-2. The reason was that the notice told D-2 that D-1 was
to be examined as a party, and that if P wanted to use D-1's deposition against D-2 he would have
to notice a deposition of D-1 as a nonparty witness.
The case is of doubtful validity under the CPLR. It is unwise for a party who has notice that
another party is to be deposed to stay away from the deposition on the theory that it can't be used
against him at the trial. CPLR 3101(a)'s language does not ground the kind of distinction made in
Nixon and given the much broader scope that disclosure has under the CPLR, there is little
support anywhere in Article 31 for such a result. See Commentary C3101:5, above. CPLR
3117(a)(2) permits a party's deposition to be used by any adverse party and says nothing at all
about notifying other parties. See Commentaries C3117:2, 3, above. As demonstrated above, the
notice requirement should, because of other provisions, be read into CPLR 3117(a)(1) and (2).
Where, however, notice is given to D-2 that D-1 is to be examined, the requirement should not
be imposed on the examining party to notify that D-1 is to be examined as a witness. This
would presumably cast upon the examining party the burden of satisfying the witness
requirements of CPLR 3101(a)(3) or (4), and perhaps even require the service of a subpoena
upon D-1 under CPLR 3106(b). The CPLR imposes no such requirements and the courts should
not import any of these things from prior law.
In addition, such a notice requires foresight not contemplated in modern rules of procedure. D1's deposition may lead to areas of inquiry and damaging testimony to D-2 that were not
contemplated when the deposition notice was served. This happenstance should not require a
termination of the deposition session until a new notice is forwarded to D-2. If a notified party
fails to show up at another party's deposition, the omission should not penalize the examiner by
precluding the use of the deposition under 3117(a)(2) against the notified but nonappearing party.
The hypercautious advocate can add to a deposition notice the statement that the party is to be
examined as both a party and a nonparty witness. If this is done, however, the party seeking the
deposition should not be required to meet the witness requirements of CPLR 3101(a)(3) or (4)
or be required to serve a subpoena on the party, as would be required with a nonparty witness
under CPLR 3106(b).
C3117:6 Omnibus Use of Any Deposition.
CPLR 3117(a)(3) permits the use of the deposition for any purpose, including the all-important
evidence-in-chief purpose, but only upon fulfillment of specified conditions. It applies to the
deposition of a party as well as that of a nonparty witness.
The deposition may be read only against a party who was represented at the deposition session or
duly notified of it. This suggests that if one party was notified while another was not, the
deposition is still usable, but only against the notified party. Such a conclusion is, however,
inconsistent with the general requirement of CPLR 2103(e) that copies of any paper served on
any party be served on every party, which requirements are made quite specific for deposition

notices by CPLR 3107 and 3109. Reading those provisions alongside CPLR 3117(a)(3), the court
would have power to exclude the use of any deposition if the party noticing the deposition failed
to provide notice to another party. See Commentary C3117:2, above.
Moreover, if a deposition significantly harms the case of a party who was not provided with
notice under CPLR 3107 or 3109, the court would be well within its powers in suppressing the
deposition altogether. There is authority for this in CPLR 3103(c) if the deposition was
improperly or irregularly obtained, and it can be deemed so obtained whenever a party entitled
to notice under CPLR 3107, 3109 or the generally applicable 2103(e) was not served with it.
This result may also be required under the introductory language in CPLR 3117(a), which will
only allow use of the deposition consistent with the rules of evidence. See Commentary C3117:2,
above.
Indeed, a court has even refused to allow the initial taking of depositions when it appeared that
not all parties entitled to be notified had as yet been subjected to the court's jurisdiction. Lake
Minnewaska Mountain House, Inc. v. Smiley, 62 Misc. 2d 311, 307 N.Y.S.2d 739 (Sup. Ct.,
Ulster Co. 1970). There were apparently a number of defendants named in the action, only four
of whom had been served when disclosure was sought. Because the others would ultimately be
entitled to notice of those depositions, see CPLR 3105, and because notices served on them
would be nullities until they were subjected to the court's jurisdiction by appropriate service or
otherwise, the court vacated the notices entirely without prejudice to later renewal. In view of
CPLR 3117(a)(3), said the court, permitting the depositions to go forward in the certainty that
they would not bind all named parties would amount to an idle ceremony. Id.
The notified party need not have actually attended the deposition. It is sufficient that the party
was given twenty days notice of it under CPLR 3107. If the party decides not to attend, that is
her own business. See State v. Metz, 171 Misc. 2d 525, 654 N.Y.S.2d 989 (Sup. Ct., N.Y.Co.
1997), mod. on other grounds 241 A.D.2d 192, 671 N.Y.S.2d 79 (1st Dep't 1998). If the party
was not notified formally but received word of the deposition from any source and actually did
attend and participate in it without reserving any protest, it can be used against her. CPLR
3117(a)(3).
The purpose for giving other parties notice of the deposition is to afford them the right to crossexamine the deponent. See CPLR 3113(c). If the witness becomes unavailable for crossexamination after providing direct examination, the deposition does not qualify for use as
evidence-in-chief. See, e.g., Stern v. Inwood Town House, Inc., 22 A.D.2d 650, 252 N.Y.S.2d
1006 (1st Dep't 1964) (witness died).
C3117:7 Laying a Foundation for Use of Deposition.
The broad use of a deposition for any purpose under CPLR 3117(a)(3) is available to any party,
whoever may have taken the deposition and whether the deponent is a party or nonparty witness.
But to make use of the deposition under paragraph 3, the party must satisfy one of its five
requirements. This is known as laying a foundation for the use of a deposition.
If one of the five items can't be met, the party is relegated to the uses specified in paragraphs 1
and 2 of CPLR 3117(a), as well as the limited use provided in CPLR 3117(b). As will be seen,
the preference underlying paragraph 3 is that if it is reasonably possible to have the witness
appear and testify in person, that witness's deposition may be used only for impeachment
purposes under paragraph 1 or, if the deponent is a party, by an adverse party under paragraph 2.
C3117:8 Satisfying the (a)(3) Requirements.
The list of five numbered items in CPLR 3117(a)(3) is essentially self-explanatory, but a few
points should be made.

Subparagraph (ii) allows the witness's deposition to be used upon a mere showing that the
witness is out of the state or, although within the state and subject to subpoena, is more than 100
miles from the courthouse. This is also a basis on which pretrial examination of a nonparty
witness is allowable. CPLR 3101(a)(3); see Roeck v. Columbia-Greene Med. Ctr., 248 A.D.2d
921, 670 N.Y.S.2d 269 (3d Dep't 1998). The court should approach these two similar provisions
with a different attitude. CPLR 3101(a)(3) should be broadly construed to allow the pretrial
deposition, which serves to prepare the parties for the trial. When it comes time to use that
deposition at the trial, the court and the parties should be mindful of the advantage to the trier of
fact when witnesses testify in person so that demeanor and credibility can be assessed. The cold
print of a deposition and the disinterested--or too interested--voice that reads it are a poor
substitute for the witness's personal appearance. The party who wants the deponent's testimony
should be prepared to produce him notwithstanding the distance the witness must travel within
the state. The mere fact that the witness is within the state subjects him to subpoena if he does
not appear voluntarily. If it appears that the personal presence of the witness would be
particularly significant in a given case, and that he is subject to call because within the state, the
court can order a personal appearance or require a party to subpoena the witness (adjourning the
trial for that purpose, if necessary), notwithstanding CPLR 3117(a)(3)(ii). See CPLR 3103(a).
If a party-witness voluntarily leaves the state and refuses to return for trial, the party has
procured her own absence and cannot satisfy CPLR 3117(a)(3)(ii). Dailey v. Keith, 1 N.Y.3d 586,
774 N.Y.S.2d 105 (2004). Therefore, the party's deposition is not admissible as of right.
A similar situation arose in Jobse v. Connolly, 60 Misc. 2d 69, 302 N.Y.S.2d 35 (Sup. Ct., Bronx
Co. 1969), in which the plaintiff, P, disappeared after his deposition had been taken. P could not
be located even by his own attorney. The attorney, therefore, sought at the trial to invoke CPLR
3117(a)(3) and put P's case in through P's deposition. The court would not permit this. P's
unavailability was of his own doing, held the court, and therefore did not justify invocation of (a)
(3). Unless some good reason for P's unavailability is cited, which was not the case in Jobse, the
rejection of P's deposition would seem to be the only appropriate result.
Item (iii) permits the deposition to be used if the witness is physically or mentally incapable of
attending the trial or of testifying coherently. This, as does all of CPLR 3117(a)(3), applies to a
party as well as nonparty witness. A party incapable of attending the trial is no more required to
attend under subparagraph (iii) than is a dead one under subparagraph (i). The court must be
convinced of such incapacity, of course, and to that end it may become necessary to adduce
supportive medical testimony.
Under subparagraph (iv), the witness's deposition can be read if it appears that diligent efforts
failed to locate the witness so as to get him to appear and testify at the trial in person. The efforts
here must be just that: diligent. A cursory visit to the witness's home without finding him does
not satisfy as diligent. See McNerney v. N.Y. Polyclinic Hosp., 18 A.D.2d 210, 238 N.Y.S.2d
729 (1st Dep't 1963).
If the witness is a nonresident and physically outside the state and refuses (without a party's
collusion) to appear at the trial, the court's hands are tied and the deposition can be read in under
subparagraph (iv). But if the witness is locatable within the state and can be served with a
subpoena, thus compelling his appearance, subparagraph (iv) does not apply.
The first four subparagraphs are almost preemptive of the situations that can justify the use of a
person's deposition in substitution for a personal attendance at the trial. Nonetheless, CPLR
3117(a)(3)(v) contains a catch-all provision empowering the court to permit evidence-in-chief
use of the deposition when other exceptional circumstances appear. Invocation of this judicial

power requires a motion or (probably meaning on) notice, and it may therefore be said
generally to contemplate an application before the trial. The party who seeks to invoke item (v)
on the list by a motion at the trial should be prepared to show that the circumstances are quite
exceptional. The tenor of all of CPLR 3117(a)(3) is that a person capable of testifying in person
and subject to judicial process or a party's control so as to compel the testimony should be on
display before the trier of fact and subjected to the rigors of confrontation and cross-examination.
C3117:8A. Dispensing with a Foundation for Medical Depositions.
Recognizing the difficulty and expense of securing the courtroom attendance of a physician and
the diversion of the physician's time from patients and medical duties while awaiting a turn in
court, CPLR 3117(a)(4), permits the physician's deposition to be used by any party without
laying a foundation. As long as the deposition was taken on notice to all parties, any party can
use the deposition, including the party for whom the witness deposed. And it may be used for all
purposes. The usual foundation needed to introduce the deposition of a witness as evidence-inchief under CPLR 3117(a)(3) is unnecessary.
The court is empowered to make a protective order to avoid abuse whenever it determines that
abuse is, or is likely to be, present. This would presumably include the power to require the
physician to attend in person and be subjected to the usual examination and cross-examination.
Given the purpose of paragraph 4, the court should not be quick to impose such a requirement.
The amendment adding CPLR 3117(a)(4) was part of the Judicial Conference's 1977
promulgations. It is based on a study conducted by Judge William P. McCooe and may be found
discussed in the Conference's 1977 Report to the Legislature on the CPLR.
Subdivision (b)
C3117:9 Using Only Part of Deposition.
Regardless of the purpose to which the deposition is being put under CPLR 3117(a), the party
using it is likely to volunteer only the parts deemed relevant to her purpose. If that party reads
only part of the deposition testimony, however, other parties may read in other parts that are of
importance to them and which reflect on the matter read in by the first party. This is also true of a
party's deposition being read into evidence by an opposing party under subdivision (a)(2). The
hands of the party who was formerly deposed are untied in such an instance and she may read in
related portions of her own deposition to the end that the trier of fact have a clear picture of
everything the deposition contains relative to the matter introduced by the adverse party.
The court has broad discretion to control this procedure. It will ultimately be up to the court to
determine what other portions are relevant to the deposition testimony previously introduced and
how far the supplementary reading should go. See Reape v. City of New York, 228 A.D.2d 659,
645 N.Y.S.2d 499 (2d Dep't 1996).
A party may not use her own deposition for the purpose of impeaching herself. See Mravlja v.
Hoke, 22 A.D.2d 848, 254 N.Y.S.2d 162 (3d Dep't 1964) (clarification in Justice Reynolds'
dissenting opinion), aff'd 17 N.Y.2d 822, 271 N.Y.S.2d 271 (1966). The Mravlja case also
indicates that when a party wants to read in portions of her own deposition to afford a broader
perspective in connection with parts read in by the adverse party, she had best seek to do so
promptly. As emphasized above, this is largely in the discretion of the trial judge, who can defer
such cross-reading to a later time in the trial. It was held in Villa v. Vetuskey, 50 A.D.2d 1093,
376 N.Y.S.2d 359 (4th Dep't 1975), for example, that a party seeking to cross-read her own
deposition should wait for her own case to do so; that she should not ordinarily be permitted to
do it on the heels of her adversary's reading of the deposition in the middle of the adversary's

case. In Villa, P was reading in a piece of D's deposition, and before P rested the court permitted
D to do the cross-reading. This was held error. Id.
Subdivision (c)
C3117:10 Substitution of Parties.
Subdivision (c) prevents substitution of parties from having any impact on the use to be made of
depositions already taken.
Thus, where a party dies and a personal representative is substituted in the party's place, the
party's deposition may be used regardless of the substitution. CPLR 3117(a)(3)(i), 3117(c).
CPLR 3117(c) also applies where the interest passes by ex-parte transfer rather than devolving
by law. If the plaintiff deposes and then assigns the cause of action to E, the original plaintiff's
deposition may be used by the defendant under CPLR 3117(a)(2). The assignment does not
impose any greater burdens on an adverse party in making use of a party's deposition. This is
consistent with CPLR 3101(a)(2), which governs the initial taking of the deposition.
C3117:11 Depositions from Prior Actions.
When the matter in dispute was the subject of a prior litigation that produced depositions, those
depositions are usable in the later action to the same extent that they were or could have been
used in the prior one. CPLR 3117(c). The key requirement is that the parties to the second action
must be the same as the parties to the first action. This requirement will be satisfied if, instead,
the parties in the second action are representatives or successors in interest to the parties in the
first action. Id. This ensures that the deposition will not find use in the later action against one
who was not a party to the prior one and did not have an opportunity to participate in crossexamination of the deponent. If X was a party to both actions but was not served with notice of
the deposition in the first one, the deposition can't be used against him in the second one for the
reason that the lack of notice prevented it from being used against him in the first. On parallel
reasoning, X's waiver of that defect in the first action resulting in its use there with X's tacit or
explicit consent should ordinarily permit its use in the later action as well.
It is this provision that obviates the taking of new depositions when a case has been remanded
for a new trial after an appeal. Since it applies to permit depositions emanating from prior actions
in other states or in federal courts to be used in later New York actions, it a fortiori permits the
reuse of depositions upon the retrial of a New York case. Cf. CPLR 4517. CPLR 3117(c) also
permits use of depositions taken in a prior action that was voluntarily discontinued. See
Siniscalchi v. Central Gen. Hosp., 80 A.D.2d 849, 444 N.Y.S.2d 468 (2d Dep't 1981). If
additional parties are added to a second action, however, further depositions should be ordered if
the additional parties deem them necessary. Id.
It is not necessary that the prior action have been dismissed or otherwise disposed of to invoke
subdivision (c). If the prior action is still pending, that may, however, be ground for a dismissal
or stay of the instant action. See CPLR 3211(a)(4).
The definition of an action involving the same subject matter is not clear in the cases. The
inquiry should be similar to the one made in a collateral estoppel determination, focusing on
whether there is an identity of issues in the cases. See D'Arata v. New York Cent. Mut. Fire Ins.
Co., 76 N.Y.2d 659, 563 N.Y.S.2d 24 (1990). This will ensure that the party against whom the
deposition is offered had an incentive to engage in meaningful cross-examination in the prior
proceeding on the point for which the deposition is offered in the current case. The fact that the
theories of the claim differ should not be a barrier, as long as the broad issues are the same. A
helpful criterion for judging this is to determine whether both claims arise out of the same

transaction or occurrence or series of them. A deposition taken in the first action could still find
function in the second if any matter deposed to were involved in both.
As noted above, although subdivision (c) does not expressly state it, the primary inquiry should
be whether all of the parties have had, in the prior action, the same opportunities to examine and
cross-examine at the deposition as they would have had in the second action. If it appears that the
jurisdiction from which the depositions emanate restricts the questioning unduly with the result
that a party had substantially less opportunity to question at the deposition than would have been
the case in the second action in New York, the court can modify the use to be made of such a
deposition or deny its use altogether. See CPLR 3103(c).
A problem analogous to the one presented in CPLR 3117(c) arises when a party attempts to use
in consolidated actions a deposition already taken in one of them before the consolidation.
Under CPLR 3117(a)(2), which permits a deposition to be used in evidence by any party against
any adverse party, a deposition may not ordinarily be used against those not parties to the action
in which the deposition was taken. They had no notice of the taking and so lacked opportunity to
participate in it. The rule becomes more difficult to apply when separate actions are consolidated
after depositions have already been taken in one or more of them. See CPLR 602. It has been
held that in order to take advantage of the rule and prevent the deposition from being used
against it, the unnotified party must, at some reasonable point after consolidation, make
appropriate objection to it. Bianchi v. Federal Ins. Co., 142 Misc. 2d 82, 535 N.Y.S.2d 952 (Sup.
Ct., N.Y. Co. 1988).
In Bianchi, the party against whom the deposition was offered never demanded an additional
examination and never objected to the use of the deposition prior to trial. The result was that the
deposition was allowed in evidence despite a belated objection. P had sued an insurer for a
burglary loss and had taken the insurer's deposition in the course of that action before it was
consolidated with a later action brought by P against the insurance agent. The agent did not
object until P tried to use the insurer's deposition as evidence-in-chief at the trial. The court
overruled the objection and allowed use of the deposition, pointing out that the agent did not ask
for a copy of the deposition, did not seek to take a deposition of the same deponent, and even
consented to the consolidation.
The case serves as a reminder to parties to consolidated actions to take note of all existing papers
already generated in the action to which they were not parties, depositions perhaps being
foremost among them. If a prior deposition contains damaging matter, the party should object
promptly and perhaps seek to set up a new deposition of the deponent. The new party should, in
any event, advise all parties that an objection will be forthcoming to any effort to use the existing
deposition as evidence-in-chief at the trial.
Subdivision (d)
C3117:12 Effect of Using Deposition.
The CPLR encourages the full and free taking of pretrial depositions. A party may even depose
himself. See Commentary C3101:13, above. The most common of all depositions is the one a
party takes of an adverse party. Less frequent is the deposition a party takes of a nonparty
witness. In these situations, the examining party does not make the deponent her witness at the
trial. A party who has deposed a nonparty witness and then determined that the testimony does
not benefit her case may disregard it entirely, neither calling the witness at the trial nor adducing
the deposition.

At the trial itself, the deposition may be used under CPLR 3117(a)(1) to impeach the deponent,
whether a party or nonparty. See Commentary C3117:2, above. Such impeachment use of the
deposition does not make the deponent the party's witness. CPLR 3117(d).
The deposition of a party may be used as evidence-in-chief by an adversely interested party. See
Commentary C3117:3, 4, 5, above. That, too, is a party's right, emanating from CPLR 3117(a)
(2). A party using the deposition in this fashion does not make the deposing party her own
witness.
The only time a party must be concerned about whether reading a deposition into evidence
makes the deponent the reading party's witness is when introduction of the deposition is sought
under CPLR 3117(a)(3). When it is that paragraph alone, unassisted by and not overlapping
CPLR 3117(a)(1) or (2), that grounds the reading, the party's introduction of the deposition does
make the deponent her witness. It does so, however, only with regard to that portion of the
deposition introduced.
Pursuant to the last sentence in CPLR 3117(d), any party, including the deponent, is not bound
by the contents of a deposition and may introduce testimony at the trial entirely inconsistent with
it. If the deposition is the party's own, and that party testifies at the trial contrary to a statement in
the deposition, an adverse party can, and no doubt will, use the deposition for either or both of
two purposes: impeachment under CPLR 3117(a)(1) and/or evidence-in-chief under CPLR
3117(a)(2). These uses may have telling effect before the trier of fact, but the rule still is that the
party who was deposed is not bound by it and may at the trial produce any competent contrary
evidence or testimony available. CPLR 3117(d).
This rule should not always be applied in reverse. For example, a party may not use her own
deposition to impeach her testimony in court. See Mravlja v. Hoke, 22 A.D.2d 848, 254 N.Y.S.2d
162 (3d Dep't 1964), aff'd 17 N.Y.2d 822, 271 N.Y.S.2d 271 (1966). Thus, if a party at the trial
takes the stand and makes a statement which is inconsistent with her own deposition, the party's
attorney cannot read from the deposition to impeach the party. This appears to be a caselaw
limitation superimposed on CPLR 3117(a)(1), whose broad language would otherwise permit
even that use for impeachment purposes. Thus, while a party may testify at the trial in tenor
contrary to her deposition, she may not then summon her deposition forth to undo her testimony
in court. The party who is disposed to play the dual role of saint and sinner would better save the
saintliness for the trial and leave the sins to the deposition. Since both aspects of the testimony
are under oath, however, the party is not likely to be well received by the jury in either case.
This can be a confusing point. Put another way, a party can by testimony at the trial rebut what
she said in a deposition. CPLR 3117(d). She cannot, however, rebut with a deposition what she
said at the trial. A party may even use documentary evidence at the trial to rebut a deposition
statement. See Yeargans v. Yeargans, 24 A.D.2d 280, 265 N.Y.S.2d 562 (1st Dep't 1965). A party
in that position is giving the other side a windfall for summation.
LEGISLATIVE STUDIES AND REPORTS
According to the Sixth Report, subd. (a) is based upon 305 (in part) and 313 of the civil
practice act and rule 129 of the rules of civil procedure and the provisions discussed in the
comments from the First Report. The word motion has been used instead of application to
conform with uniform terminology. Par. 2 authorizes use of a party's deposition unlimitedly
against the deponent. The provision rejects the rule of Masciarelli v. Delaware & Hudson R. Co.,
178 Misc. 458, 34 N.Y.S.2d 550 (1942). Par. 2 also uses the words or the deposition of an
employee of a party produced by that party. This conforms with present New York practice
which is broader in this respect than the Federal practice. In personal injury actions an employee

or agent of the corporate defendant is frequently the only one with knowledge of the facts. The
First Report states that such subd. (a) embodies the substance of 303, 304 and 343-a of the
civil practice act. The language is adapted from New Jersey rule 4:16-4 and Rule 26(d), Federal
Rules of Civil Procedure, 28 U.S.C.A. The present New York one hundred mile provision has
been retained in view of the size of the state.
According to the First Report, subd. (b) represents current New York practice. It is based on
101.19-10(4) of the Illinois rules.
According to the First Report, subd. (c) is essentially the same as 303 of the civil practice act.
It is based upon the last paragraph of Rule 26(d), Federal Rules of Civil Procedure, 28 U.S.C.A.,
but, unlike its prototype, it does not require dismissal of the prior action.
According to the First Report, subd. (d) follows present New York practice. Cf. Civ.Prac.Act.
305, 343, 343-a. It is based upon Federal Rule 26(f), Federal Rules of Civil Procedure, 28
U.S.C.A.
N.Y. C.P.L.R. 3117 (McKinney)

39:30. The use and trial presentation of deposition testimony in lieu of live testimony
West's Key Number Digest
West's Key Number Digest, Pretrial Procedure

201 to 206

Treatises and Practice Aids


Haig, Business and Commercial Litigation in Federal Courts 20:72, 35:26 (2d ed.)
Carmody-Wait 2d 42:397
CPLR 3117(a)1 provides for a number of circumstances where trial counsel can use deposition
testimony at trial in lieu of live testimony (to the extent the deposition testimony would
otherwise be admissible under the rules of evidence): (1) the reading of deposition testimony of
adverse witnesses; (2) the reading of deposition testimony where the witness qualifies as
unavailable under CPLR 3117(a)(3); or (3) the court finds exceptional circumstances
warranting the use of deposition testimony.2 Additionally, depositions may be used for
nonsubstantive purposes under CPLR 3117(a)(1), such as refreshing recollection or impeaching a
witness.3
Usually, deposition testimony, when it is introduced substantively at trial, falls under the adverse
or unavailable witness provisions. Nevertheless, the exceptional circumstances provision of
CPLR 3117(a)(3)(v) has been applied by some courts on findings that the costs of requiring the
witness to appear for live testimony would impose an economic or other hardship on the
witness.4

Even where the court does not find proper grounds for deposition reading, the practicality of its
use sometimes forges consensus between the parties. For example, in a commercial case where a
third party witness complained of the undue burden of having to testify, the trial judge refused to
invoke CPLR 3117(a)(3)(v) and instead ruled that the witness's deposition testimony could only
be used on the consent of all the parties. In the context of all of the provisions of CPLR 3117(a)
(3) and, in view of the difference in quality of live testimony and deposition testimony, the judge
deemed the claims of undue burden as not genuinely exceptional. Notwithstanding the
court's ruling, both sides ultimately agreed to use the deposition anyway out of concern for
antagonizing the prospective witness by having to bear the responsibility for compelling that
witness's attendance at trial.
In determining whether and to what extent deposition testimony should be used in lieu of live
testimony, it is vital to consider the adverse party's right to cross read related portions of the
deposition testimony. If a party introduces into evidence only a portion of a deposition, under
CPLR 3117(b) any other party may read into evidence any other part of the deposition which
ought in fairness to be considered in connection with the part read.5 Such cross-reading usually
is done during the adverse party's case.6 Reading some portions of the deposition may open the
door for an adversary to read segments of the deposition that are favorable to the adversary's
case. As a practical matter, cross-reading may neutralize or negate any use of the deposition, as it
may obscure the point which the deposition was intended to prove and leave the judge or jury
with the impression that the counsel acted unfairly by selecting the portions of testimony it did.
This is a problem that occurs all too frequently and is a consequence of the common, but often
questionable, practice in modern commercial litigation of using open ended discovery-type
questions, rather than leading questions, in conducting depositions.7
As a technical matter, under CPLR 3117(d), the introduction of a deposition into evidence, other
than for purposes of contradiction or impeachment, makes that deponent the witness of the party
introducing the deposition, except where it is the deposition of an adverse party.8 Nevertheless,
CPLR 3117(d) further provides that any party may rebut any relevant evidence contained in a
deposition, whether introduced by him or by any other party.
Particularly in commercial cases, it is a salutary practice for the parties in advance of trial to
designate portions of the deposition testimony they plan to introduce as affirmative evidence
during their respective cases in chief, and to counterdesignate any objections they may have to
the adversary's readings, together with portions of the deposition testimony they expect to read as
a matter of fairness or completeness. If this is done as one of the trial preliminaries, each side is
given adequate notice, the court has the option to rule on some or all of the objections before the
trial begins, and the trial itself moves more swiftly and efficiently by avoiding intermittent
interruptions and delays during the course of deposition reading.
Although the practice of exchanging deposition designations is, and was, commonly followed in
the federal courts pursuant to pretrial order procedures, in the past it was less frequently followed
in state court litigation. This has largely been remedied by court rule. For example, Rule 29 of
the Rules of Practice for the Commercial Division9 requires the pretrial identification of
deposition testimony to be used at trial and other relevant procedures.10 Deposition designation,
objections, and cross-designations addressed during the course of the trial, rather than before it,

increase burdens on counsel and the court, enlarge the opportunity for error, and further
complicate the ability to present the evidence in a clear and understandable manner.
There are no formal rules specifying the form of deposition designations. Instead, trial lawyers
have developed their own format for designating depositions. They are often referred to as
deposition scripts.11 The scripts contain notations showing the page and line of deposition
transcripts that are offered as evidence. For example, line 14 to 24 on page 5 is given the
notation: 5 L. 14-24 or 5:14-24. Other notations and abbreviations are used for exhibits,
pleadings, or other evidentiary matter.
The script, however, does more than merely designate pages and lines of transcript to be
introduced into evidence and read to the jury or judge. The script is a working document for the
lawyer using it. It provides a method for the lawyers to keep track of the relevant content of the
deposition testimony for organization of the case in chief, possible later use in cross examination,
preparation of the summation, or in other aspects of the trial proceedings. Subject matter
headings may be helpful for those purposes or for quick reference during the course of the
testimony of other witnesses. The script may also contain the lawyer's notes and comments that
are confidential trial work product12 concerning sensitive evidentiary issues, alternative
approaches for introducing particular evidence, or tactical considerations. Accordingly, the
preparation and use of such scripts are particularly important in complex or protracted
commercial cases where many portions of deposition testimony will be designated and read.
Evidentiary objections to the competency of witnesses and to the admissibility of deposition
testimony offered at trial are essentially the same as those for live trial testimony, except as to
errors and irregularities occurring at the deposition in the form of questions or answers, or of any
other kind which might have been obviated or removed if objection was promptly presented. As
to such errors or irregularities that were correctable, failure to make an objection when the
question is asked at deposition waives the objection.13
Apart from instances where only brief portions of deposition testimony are read as a means of
introducing particular noncontroversial facts that need to be included in the record, deposition
reading is an important event in the trial. If the deposition does not provide facts of importance to
the case or does not serve as a vehicle for introducing other important evidence, it should not be
read.
There are various methods for introducing the testimony. If the depositions were recorded on
video, showing the jury the selected excerpts from a deposition is often the most effective way to
present the testimony. The video presentation allows the jurors to see the witness testifying. If
counsel is offering the witness's testimony on their case in chief and the witness has a reasonably
good appearance on video, the visual image can enforce the juror's image of the witness and
recollection at the time of deliberations of the positive aspects of the witness's testimony.
Conversely, the video image of an adverse witness looking overtly cagey or otherwise displaying
nonverbal cues of untrustworthiness or dissembling, can go far in helping challenge the witness's
credibility. If counsel has the choice and their own witness presented poorly on video, or an
adverse witness presented well, counsel may want to forgo showing the video. Lastly, cost is a

considerationformatting video for use at trial, and renting or maintaining the necessary video
equipment (and engaging video technicians) can prove too expensive for the case or the client.
Regardless of whether the deposition was recorded on video, the testimony can still be
introduced in the conventional (and typically less expensive manner) by reading the testimony to
the jury. A single attorney can read both the questions and the answers. But, unless the readings
are very brief, this can be the least interesting and most tedious way to do it. Another method is
for one lawyer to read the questions and another lawyer or member of the trial team to read the
answers. This is a better method because it attempts to simulate actual examination. Although a
few judges may require that the attorneys read the testimony mechanically and without
inflection, most judges will allow some latitude in the manner in which the questions and
answers are read. However, most judges correctly will not permit the reading to become
theatrical. Where the deposition testimony of a number of witnesses is read, it may be helpful to
place a name card in front of the simulated witness as a means of reminding the jury who is
testifying and making it a touch more interesting.
By whatever method the deposition testimony is read, it is essential that those who read it during
trial study it beforehand and acquire a familiarity so that it can be read as smoothly and
effectively as possible, with appropriate emphasis, and with the least amount of interruption or
fumbling.
Deposition reading can also be made more interesting if interrupted, from time to time, with the
reading of the relevant contents of documents to which reference is made in the testimony,
particularly if the jury can view those documents visually. The document or exhibit referenced in
the deposition is shown by visual display simultaneously or separately with the reading of a
particular sentence, paragraph or longer portions of the document.14
When presenting deposition testimony, whether by video or through live deposition reading, the
team presenting the evidence should treat it as an important trial event. If, by their demeanor,
they signal to the jury that the reading is a secondary event, the jury will also consider it of lesser
importance and pay little attention. This plainly occurred in one commercial trial, where the
deposition reading was relegated to the youngest members of the team, while lead trial counsel
left the courtroom to attend to other matters. Similarly, while presenting video testimony, all
counsel on the team should appear alert and engaged in the testimony and not work on other
tasks. Jurors will occasionally turn their eyes from the video to counsel. When that happens,
counsel's attentiveness to the proceedingsespecially to the video and the jurymay help direct
the juror's attention back to the testimony.
The decisions as to which portions of deposition testimony to use in the case in chief are
substantive decisions that should be made as part of the Trial Game Plan.15 A key presentation
issue, however, is whether to read portions of the witness's deposition testimony sequentially or
by subject. The CPLR does not prescribe any particular method, and the method used is subject
only to the court's general discretion under CPLR 401116 to regulate the conduct of the trial.
The customary and historical practice is to read the designated portions of the deposition
testimony of the witness in the sequence in which that testimony was given.17 Sequential reading

is an appropriate method when the sequence of the questioning in the deposition is logical and
can provide the factfinder with a clear understanding of the testimony.
Often, however, particularly in commercial cases where there are longer depositions, the
sequence of testimony may be jumbled. The deposition may have been taken in a subject matter
order that is not well suited for trial preparation. Also, the witness may have testified as to the
same subject at several different points in the deposition. This may occur because of the
adversarial context of depositions, because the deposition was taken primarily for discovery
purposes, or because it was taken without giving thought to how it would best read at trial.
Regardless of the cause, in those cases, reading the deposition in sequence may render the
testimony unclear, confusing, or simply less persuasive.
Notwithstanding these and other types of considerations, probably in most commercial cases the
lawyers simply read portions of the deposition testimony in the sequence in which the testimony
was given and must suffer the difficulties and adverse consequences of doing it in that manner.
Failure to consider the available option of reading the testimony by topic or subject matter is one
of the reasons deposition reading at trial has an unnecessarily bad reputation as a trial tool.
The overriding consideration in reading deposition testimony at trial, like introducing
documentary and testimonial evidence, is to make the presentation clear, interesting, and
effective. Perhaps the best method for doing this, particularly with longer depositions, is
grouping the readings by subject matter and then reading the testimony in those groups in a
logical and clear manner.18
Very importantly, as is shown elsewhere,19 there are many stopping points during the reading of
the deposition when documents are introduced, read, and shown to the jury by visual display.20
This serves several purposes. It creates variety and pace. Instead of simply listening to questions
and answers, the jury has the opportunity to participate interactively with counsel in the reading
of relevant portions of the documents shown visually. It provides trial counsel with the
opportunity to interact with the jury and to cement rapport. It also adds muted elements of theater
or schoolroom. Most significantly, the combined effect of the techniques used results in a clear
and understandable narrative of important facts, many of which were admitted by the adverse
party whose deposition testimony was read.
The importance of using these techniques when presenting deposition testimony to the jury
cannot be overstated, and these techniques are all the more critical when a significant amount of
deposition testimony is used in any single trial. These methods maximize the opportunities for
maintaining interest and fostering more significant understanding and retention of the facts and
issues that are the subjects of the testimony, and the accompanying documentary evidence.
The conduct and use of videotaped depositions in the New York Supreme Court and County
Court is governed by Section 202.15 of the Uniform Rules for the New York State Trial Courts.21
Counsel taking the depositions should be sure to comply with the rules, as the failure to do so
may result in the video being excluded from use at trial. In recent years, the use of video
depositions and related technology has become the rule, rather than the exception, in commercial
trials, especially in matters involving controversies of significant value. A party that did not take

video recordings of depositions, or that is precluded from using defectively prepared videos, may
find itself at a significant disadvantage.
Some problems arise in the videotaped depositions, although they can be managed very well
with the proper equipment and trained personnel. Only an edited version of the video can be
shown in court, thus requiring designation so that the operator can eliminate those portions that
are not designated.22 All colloquies between the lawyers should be deleted, and only those
portions of the deposition admissible under CPLR 3117(a) and other evidentiary rules may be
shown.23 Moreover, the presentation of portions of video depositions by topic or subject matter
may be impossible, or at least considerably more difficult than when reading portions of the
transcript, because of the apparent loss of continuity.
Counsel generally should work with skilled technicians to edit the video testimony before trial,
through designations of the portions to be shown, assertion of objections, and the resolution of
those objections by the court.24 Current technology operated by trained personnel allows nearly
immediate interruption and editing of videos at trial, and, not infrequently, when an objection is
made during its presentation at trial, the video is edited on the spot if the objection is
sustained.25 This technique, however, is even more interruptive than when objections are made
and resolved during the course of live testimony. Counsel is much better off taking care in
editing in advance of trial, to avoid objections and ensure that the presentation is as smooth and
clean as the testimony permits.
It is a particularly important consideration in bench trials whether the particular judge's practice
is to have deposition testimony read during the course of the trial or submitted for later reading
by that judge. Some judges have indicated their preference and practice in a bench trial to have
the pertinent portion of depositions and documents read during the trial. Those judges, for the
most part, prefer that the lawyers use many techniques similar to those they would use in a jury
trial. However, other judges prefer to have deposition transcripts and documents submitted for
later reading, with only limited reference made to them during the time when they are the subject
of witnesses' testimony. Nevertheless, it is worth the effort to request the opportunity to present
video testimony, or at least read or describe key portions of documents and deposition testimony
for purposes of continuity with other evidence and for forensic emphasis.
As a practical matter, submitting transcripts or exhibits for later reading by the judge can create
dangers: the more that is submitted for post-trial review, often together with post-trial briefings,
the greater the possibility they will not be as carefully considered or not read at all. Moreover,
the court is unlikely to take the time to watch video testimony when off the bench. If the visual
image is of particular value for any particular deposition, counsel should seek permission to run
the video for the judge while in the courtroom.
Westlaw. 2014 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Editor-in-Chief

*
Stephen Rackow Kaye, the author of the versions of Chapter 39 which appeared in the First and
Second Editions of this work, died on October 30, 2006. To honor his memory, and to pay
homage to Steve's lifetime of selfless devotion to teaching in the law, Steve's law firm, Proskauer
Rose LLP, thereafter undertook to prepare the annual supplements for this Chapter. In
furtherance of this tradition, and in recognition of Steve's enduring legacy, his former partner
Edwin Baum (now a partner in Crowell & Moring LLP), and former associate Anthony Wladyka
co-authored Chapter 39 for the Third Edition of this work, which retains in very substantial part
Steve's prior work. Crowell & Moring associates Hugh Sandler, Namrata Kotwani, and Jeff
Severson assisted in the preparation of this 2014 annual supplement.
1
CPLR 3117(a).
2
CPLR 3117(a) provides in pertinent part:

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:
o (i) that the witness is dead; or
o (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
o (iii) that the witness is unable to attend or testify because of age, sickness,
infirmity or imprisonment; or
o (iv) that the party offering the deposition has been unable to procure the
attendance of the witness by diligent efforts; or
o (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.

3
As to refreshing recollection, see 39:17; as to impeaching or correcting the testimony of a
party's own witness, see 39:21; as to impeachment of the opposing party's witness and a
redacted excerpt from a cross examination of an adverse party witness in a complex commercial

case, illustrating this method of impeachment, see Chapter 40, Cross Examination ( 40:1 et
seq.).
4
See, e.g., Sandra S. v. Glenn M.S., 133 Misc. 2d 370, 374375, 506 N.Y.S.2d 259, 263 (Fam. Ct.
1986); Ratner v. Ratner, 73 Misc. 2d 374, 378379, 342 N.Y.S.2d 58, 6364 (Fam. Ct. 1973).
5
The adverse party may, for example, read additional portions necessary to correct a false
impression that reading only a part of the statement may give. Hallock v. State, 98 A.D.2d 856,
470 N.Y.S.2d 844 (3d Dep't 1983), order rev'd on other grounds, 64 N.Y.2d 224, 485 N.Y.S.2d
510, 474 N.E.2d 1178 (1984); Gottfried v. Gottfried, 197 Misc. 562, 567, 95 N.Y.S.2d 561, 567
(Sup 1950).
6
Villa v. Vetuskey, 50 A.D.2d 1093, 10941095, 376 N.Y.S.2d 359, 363 (4th Dep't 1975).
7
As to leading questions, see Chapter 40, Cross Examination ( 40:1 et seq.).
8
Under CPLR 3117(a)(2), officers, directors, members, managing or authorized agents, or
employees of an opposing party qualify as the adverse party for the purpose of deposition
reading. CPLR 3117(a)(2) has been amended, effective January 1, 1997, further clarifying the
use of deposition transcripts of officers, directors, members or authorized agents or employees by
an adverse party. Under the amendment, use of depositions of these persons 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. CPLR
3117(a)(2) (as amended) (emphasis added). See, e.g., Martinez v. Top 99 Discount, 3 Misc. 3d
223, 776 N.Y.S.2d 176 (N.Y. City Civ. Ct. 2004), in which the court held that the defendant
could use at trial the deposition of his former codefendant who had been stipulated out of the
action by the plaintiff; CPLR 3117(a)(2) permits introduction of a deposition transcript into
evidence at trial, without a need to show that the witness is unavailable, of any person who was
an adverse party either at the time the deposition was taken, or at trial, and at the time the
deposition was taken in the present case, the fromer codefendant was a named party to the
lawsuit and his interests were adverse to the named codefendant.
9
22 NYCRR 202.70(g), Rule 29.
10
In addition, under CPLR 4011, the court has broad discretion to regulate the conduct of the trial
in order to achieve a speedy and unprejudiced disposition of the matters at issue in a setting of
proper decorum.
11
For examples of such scripts from the commercial context, see 39:35 to 39:36.
12
For an example of lawyer's notes and comments on a deposition script, see 39:35 to 39:36.
13
CPLR 3115 in relevant part provides:

(a) Objection when deposition offered in evidence. Subject to the other provisions of this
rule, objection may be made at the trial or hearing to receiving in evidence any deposition

or part thereof for any reason which would require the exclusion of the evidence if the
witness were then present and testifying.

(b) Errors which might be obviated if made known promptly. Errors and irregularities
occurring at the oral examination in the manner of taking the deposition, in the form of
the questions or answers, in the oath or affirmation, or in the conduct of persons, and
errors of any kind which might be obviated or removed if objection were promptly
presented, are waived unless reasonable objection thereto is made at the taking of the
deposition.
***

CPLR 3116(a) has been amended, effective January 1, 1997, to require that a deposition
transcript be signed within 60 days of its submission to the deponent or the deponent's attorney.
Failure of the deponent to return the transcript within 60 days means that it may be used as
though fully signed. The rule also provides that changes may not be made to the transcript more
than 60 days after submission to the deponent.
Because the effective date of the amendment is January 1, 1997, it should apply both to actions
commenced after that date and depositions taken after January 1, 1997 in pending actions.
14
See Chapter 42, Graphics and Other Demonstrative Evidence ( 42:1 et seq.).
15
As to elements and formulation of the Trial Game Plan, see Chapter 37, Trials ( 37:1 et
seq.).
16
CPLR 4011.
17
For an example of a deposition designation script showing this type of reading, see 39:35.
18
For an example of a deposition designation script utilizing this method, see 39:36. As will be
seen from the designation outline (following the first two subject matters concerning background
which were given at the outset of the deposition), the subjects that followed were not read in the
sequence in which the deposition testimony was given. Testimony on discrete subjects from
different points in the deposition were grouped and placed in a logical order. Where appropriate,
Agreed Facts were interspersed.
19
See 39:36.
20
For an illustration of this, see 39:36.
21
22 NYCRR 202.15; see Wilkinson v. British Airways, 292 A.D.2d 263, 740 N.Y.S.2d 294 (1st
Dep't 2002) (holding that videotaped deposition testimony of the plaintiff's sole medical witness,
taken in the United Kingdom pursuant to court order, was inadmissible where the plaintiff's
counsel administered an oath to the witness after being cautioned by the defendant's counsel,
who objected to such procedure). That rule employs the now outdated terms videotape and
tape. In recent years, digital recording has almost entirely replaced the old analog videotape

technology. At the present time,deposition videos typically are stored on DVD disks or computer
drives, and often are accessible through private (and occasionally public) network sources or the
web. See Chapter 24, Depositions ( 24:1 et seq.) for additional discussion of videotaped
depositions.
4 N.Y.Prac., Com. Litig. in New York State Courts 39:30 (3d ed.)