CPLR 3117(a)(2)-(a)(3)

CPLR 3117. Use of depositions

International Fin. Corp. v Carrera Holdings Inc., 2018 NY Slip Op 01541 [1st Dept. 2018]

The court erred in concluding that Carrera S.P.A.'s principal Vivek Jacob's deposition testimony was admissible under CPLR 3117(a)(2), which permits deposition testimony of an officer of a party for use "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." Carrera, which offered the testimony in evidence, was not a party adverse to Jacob at the time when he was deposed or at trial. Nevertheless, the court correctly concluded that Jacob's testimony was admissible under CPLR 3117(a)(3)(I) because he was deceased by the time of trial. To the extent portions of Jacob's testimony were not based on his personal knowledge of the Tajik government's interference with operations at Giavoni (see Wathne Imports, Ltd. v PRL USA, Inc., 125 AD3d 434 [1st Dept 2015]; Eustaquio v 860 Cortlandt Holdings, Inc., 95 AD3d 548 [1st Dept 2012]), there is other evidence to support those facts, and plaintiff was not prejudiced by any error in admitting that testimony (see CPLR 2002).

Plaintiff waived any objection to defendants' failure to produce relevant financial documents, the existence of which it was aware of as early as 2009 (well before trial in 2015), by filing its note of issue and certificate of readiness (see Fernandez v City of New York, 84 AD3d 595 [1st Dept 2011]).

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