
Trial Testimony - Prior Testimony - Use of Depositions at Trial or Hearing
At the trial or upon a hearing of a motion, part or all of a deposition, so far as admissible under the rules of evidence, may be used as follows:
• by any party, for the purpose of contradicting or impeaching the testimony of the deponent as a witness;[1]
• 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;[2]
• 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 the Civil Practice Law and Rules.
However, before permitting a deposition to be used the court must first find:
(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. [3]
If only part of a deposition is read at the trial by a party, the adverse party may read any other part of the deposition which ought in fairness to be considered in connection with the part that was read.[4]
CPLR 3116 (a) provides that a deposition shall be submitted to the witness who can make changes. The witness must then sign the deposition under oath and return it. If the witness fails to sign and return the deposition within 60 days, it may be used as fully as though signed. If a party fails to comply with CPLR 3116 (a) and does not send the deposition to the witness that party may not use the transcript of the deposition pursuant to CPLR 3117.[5]
[1] Civil Practice Law and Rules 3117(a) (1).
[2] Civil Practice Law and Rules 3117(a) (2).
[3] Civil Practice Law and Rules 3117(a) (3).
[4] Civil Practice Law and Rules 3117(b).
[5] See Santos v Intown Assoc., 17 AD3d 564 [2d Dept., 2005]; Lalli v Abe, 234 AD2d 346 [2d Dept., 1996]).
In Ramirez v Willow Ridge Country Club, Inc., 84 AD3d 452, (1st Dept 2011) the First Department held that the deposition transcript could not be used during cross-examination, on the ground that there had been a failure to show compliance with CPLR 3116. In its decision, the Court said: “[T]he court properly precluded the use of Jack’s unsigned deposition transcript during Jack’s cross-examination inasmuch as plaintiff failed to establish that the transcript was sent to Jack and that he failed to return it within 60 days. It is the burden of the party proffering the deposition transcript to establish compliance with CPLR 3116 (a) (Pina v Flik Intl. Corp., 25 AD3d 772, 773 [2006]).”
At the trial or upon a hearing of a motion, part or all of a deposition, so far as admissible under the rules of evidence, may be used as follows:
• by any party, for the purpose of contradicting or impeaching the testimony of the deponent as a witness;[1]
• 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;[2]
• 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 the Civil Practice Law and Rules.
However, before permitting a deposition to be used the court must first find:
(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. [3]
If only part of a deposition is read at the trial by a party, the adverse party may read any other part of the deposition which ought in fairness to be considered in connection with the part that was read.[4]
CPLR 3116 (a) provides that a deposition shall be submitted to the witness who can make changes. The witness must then sign the deposition under oath and return it. If the witness fails to sign and return the deposition within 60 days, it may be used as fully as though signed. If a party fails to comply with CPLR 3116 (a) and does not send the deposition to the witness that party may not use the transcript of the deposition pursuant to CPLR 3117.[5]
[1] Civil Practice Law and Rules 3117(a) (1).
[2] Civil Practice Law and Rules 3117(a) (2).
[3] Civil Practice Law and Rules 3117(a) (3).
[4] Civil Practice Law and Rules 3117(b).
[5] See Santos v Intown Assoc., 17 AD3d 564 [2d Dept., 2005]; Lalli v Abe, 234 AD2d 346 [2d Dept., 1996]).
In Ramirez v Willow Ridge Country Club, Inc., 84 AD3d 452, (1st Dept 2011) the First Department held that the deposition transcript could not be used during cross-examination, on the ground that there had been a failure to show compliance with CPLR 3116. In its decision, the Court said: “[T]he court properly precluded the use of Jack’s unsigned deposition transcript during Jack’s cross-examination inasmuch as plaintiff failed to establish that the transcript was sent to Jack and that he failed to return it within 60 days. It is the burden of the party proffering the deposition transcript to establish compliance with CPLR 3116 (a) (Pina v Flik Intl. Corp., 25 AD3d 772, 773 [2006]).”
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
Joel R. Brandes Consulting Services, Inc.
2881 NE 33rd Court (At Dock) Ft. Lauderdale, Florida 33306. Telephone (954) 564-9883. email to:[email protected]. Joel R. Brandes Consulting Services, Inc is a Florida corporation which is owned and operated by
Joel R. Brandes of The New York Law Firm of Joel R. Brandes. P.C. |
This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
|