N.Y. Civil Practice Law & Rules § 3117: Use of depositions

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.