Search OpenLegislation Statutes

This entry was published on 2014-09-22
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
Prior testimony in a civil action
Civil Practice Law & Rules (CVP) CHAPTER 8, ARTICLE 45
Rule 4517. Prior testimony in a civil action. (a) Impeachment of
witnesses; parties; unavailable witness. In a civil action, at the trial
or upon the hearing of a motion or an interlocutory proceeding, all or
any part of the testimony of a witness that was taken at a prior trial
in the same action or at a prior trial involving the same parties or
their representatives and arising from the same subject matter, so far
as admissible under the rules of evidence, may be used in accordance
with any of the following provisions:

1. any such testimony may be used by any party for the purpose of
contradicting or impeaching the testimony of the same witness;

2. the prior trial 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 is adversely interested when the prior testimony is
offered in evidence;

3. the prior trial testimony of any person may be used by any party
for any purpose against any other party, 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
testimony; 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 testimony has been unable to procure
the attendance of the witness by diligent efforts; or

(v) upon motion on 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 prior trial testimony 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 for preclusion upon the ground that admission of the prior
testimony would be prejudicial under the circumstances.

(b) Use of part of the prior trial testimony of a witness. If only
part of the prior trial testimony of a witness is read at the trial by a
party, any other party may read any other part of the prior testimony of
that witness that 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 testimony previously taken at trial.