§ Rule 4517 Prior Testimony in a Civil Action

Codes > Laws of New York > Civil Practice > Chapter Eight : Article 45 > Rule 4517

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.