CPLR R. 3117

CPLR R. 3117 Use of depositions

In Rivera v New York City Tr. Auth., 2008 NY Slip Op 06684 (App. Div., 1st), the First Department addressed the admissibility of 50(h) transcripts in a relatively unusual set of circumstances.  Initially there were several plaintiffs, several 50(h)s, and several separate lawsuits.  Nine of those lawsuits were consolidated for trial and by the time the trial went forward, six of the plaintiff's had settled.  During the trial, the court allowed defense counsel to read parts of all nine 50(h) transcripts into evidence.  Plaintiff objected, arguing that that the transcripts were inadmissible hearsay; none of the plaintiffs received notice of the other's 50(h) and none of the plaintiffs were represented by counsel.

The Court agreed, basing its opinion on CPLR R. 3117(a)(2). Without deciding whether it allowed the use of depositions where there was no notice and where an attorney wasn't present, the court found the transcripts to be inadmissible:

CPLR 3117(a)(2) provides that "the deposition testimony of a party or of any person who was a party when the testimony was given . . . may be used [at trial] 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." The statute expressly provides, however, that the use of a deposition is authorized only "so far as admissible under the rules of evidence" (CPLR 3117[a] [emphasis added]). Thus, even assuming (without deciding) that CPLR 3117(a)(2), unlike CPLR 3117(a)(3) (setting forth the conditions for the use of "the deposition of any person"), permits the use of the deposition of a party against another party who did not receive notice of the deposition and was not present or represented at its taking (see Bianchi v Federal Ins. Co., 142 Misc 2d 82 [Sup Ct, NY County 1988]; but see Andrusziewicz v Atlas, 13 AD3d 325 [2004]; Siniscalchi v Central Gen. Hosp., 80 AD2d 849 [1981]; Weinstein-Korn-Miller, NY Civ Prac ¶ 3117.05 [2d ed]), deposition testimony otherwise satisfying the requirements of CPLR 3117(a)(2) still is not admissible unless it is shown that, as to each party against whom the deposition is to be used, it falls within an exception to the rule against hearsay (see United Bank v Cambridge Sporting Goods Corp., 41 NY2d 254, 264 [1976]). No such showing was made here.

While the deposition testimony of each plaintiff was admissible against that plaintiff as an admission (see Prince, Richardson on Evidence, §§ 8-201, 8-202 [Farrell 11th ed]), the status of such testimony as an admission of the plaintiff who testified did not render it admissible against the other plaintiffs (id. § 8-203; see also Claypool v City of New York, 267 AD2d 33, 35 [1999] [GML § 50-h testimony was not admissible at trial against parties who "were not notified and were not present at the hearing"])[FN1]. Neither were the depositions admissible under the hearsay exception for declarations against the declarant's interest, since none of the deponents was shown to have been unavailable to testify at trial (see Prince, Richardson, supra, § 8-404). Further, since none of the deponents testified at trial before his or her deposition was read into evidence, the deposition testimony was not admissible as a trial witness's prior inconsistent statement (cf. Letendre v Hartford Acc. & Indem. Co., 21 NY2d 518 [1968]; Campbell v City of Elmira, 198 AD2d 736, 738 [1993], affd 84 NY2d 505 [1994]; Prince, Richardson, supra, § 8-104).

All the bold is mine.