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This entry was published on 2014-09-22
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SECTION 3117
Use of depositions
Civil Practice Law & Rules (CVP) CHAPTER 8, ARTICLE 31
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.