Article 31. Disclosure · Last amended 1997 · Last verified July 21, 2026
In one sentenceCPLR 3117 sets out when a deposition taken before trial can be read into evidence at trial or on a motion, covering impeachment, party admissions, unavailable witnesses, and medical testimony.
(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.
Plain-English Summary
A deposition is usually a discovery tool, not proof. CPLR 3117 says when the transcript can come off the shelf and into the trial record. Every party can use any deposition to impeach a witness who takes the stand and testifies differently than they did under oath. That use needs no special showing — a prior inconsistent statement is fair game against anyone.
Using a deposition for anything beyond impeachment takes more. A party's own deposition testimony, or that of someone who was an officer, employee, or agent of a party when questioned, can be used against that party for any purpose, without restriction. For everyone else, the rule asks the court to find the witness truly out of reach — dead, more than a hundred miles from the courthouse or out of state, too sick or old or imprisoned to attend, or unavailable despite real effort to find them, or that the interest of justice calls for it under exceptional circumstances. One category needs none of that: a treating or examining physician's deposition comes in freely, since forcing doctors to sit through trial testimony after they've already sat for a deposition serves no purpose.
The rule also settles some housekeeping questions. Read part of a deposition into the record, and your opponent can read the rest, so testimony isn't quoted out of context. Depositions taken in an earlier case carry over into a later one between the same parties over the same dispute. And taking someone's deposition doesn't make them “your witness” for trial purposes — only introducing the substance of their testimony does that, with an exception for the party's own admissions.
Frequently Asked Questions
Can I use a deposition transcript at trial in a New York case?
Yes. CPLR 3117 lets you read deposition testimony into the trial record for impeachment, as an admission against a party, or against any party who took part in the deposition once the court finds the witness unavailable under the rule's terms.
Do I need to prove the witness is unavailable to use their deposition at trial?
It depends on who they are. Depositions of a party or the party's agent can be used freely; a non-party witness's deposition needs a court finding of unavailability, such as death, distance, illness, or a diligent effort that failed to locate them.
Can a doctor's deposition be read at trial without the doctor testifying live?
Yes. CPLR 3117(a)(4) lets any party use the deposition of a person authorized to practice medicine without showing unavailability, though a court can still limit that use to prevent abuse under CPLR 3103.
If my opponent reads part of my deposition at trial, can I bring in the rest?
Yes. CPLR 3117(b) lets you read any other part of the deposition that fairness requires be considered along with the part your opponent used.
Does taking someone's deposition make them my witness?
No. CPLR 3117(d) says taking a deposition doesn't make the deponent your witness; only introducing their testimony for a purpose other than impeachment does, and even then you can still rebut anything unfavorable in it.
Can I use a deposition from an earlier lawsuit in my current case?
Yes, if the earlier case involved the same parties and subject matter. CPLR 3117(c) lets those depositions carry into the new action as if they had been taken there.
Advisory Committee Notes
Subd (a) of this rule embodies the substance of CPA §§ 303, 304 and 343-a. The language is adapted from New Jersey rule 4:16-4 and Federal rule 26(d). The former New York one hundred mile provision has been retained in view of the size of the state. Paragraph 2 expresses the Committee’s intention to authorize use of a party’s * The disposition still conceivably could be admitted on other grounds, for example unavailability. And it still could be used to impeach pursuant to CPLR 4514.
deposition unlimitedly against the deponent. The Committee notes that this provision rejects the rule of Masciarelli v Delaware & Hudson R. Co. 178 Misc 458, 34 NYS2d 550 (1942). The phrase “or the deposition of an employee of a party produced by that party” in paragraph 2 conforms with former New York practice which is broader in this respect than the Federal practice. In personal injury actions an employee or agent of the corporate defendant is frequently the only one with knowledge of the facts.
Subd (b) of this rule represents former New York practice. It is based on § 101.19-10(4) of the Illinois rules.
Subd (c) of this rule is essentially the same as CPA § 303. It is based upon the last paragraph of Federal rule 26(d), but, unlike its prototype, it does not require dismissal of the prior action.
Subd (d) of this rule follows former New York practice. Cf. CPA §§ 305, 343, 343-a. It is based upon Federal rule 26(f).
1978 Recommendations of the Committee to Advise and Consult with the Judicial Conference and the Chief Administrator of the Courts on the Civil Practice Law and Rules:
This measure would amend CPLR 3101(a) to permit a party to obtain full disclosure of all evidence material and necessary in the prosecution or defense of an action from a person authorized to practice medicine, who has provided medical care or diagnosis to the party demanding disclosure or who has been retained by him as an expert witness, without a showing of unavailability or special circumstances.
This bill would liberalize the “special circumstances” rule only with respect to the physicians specified. Thus, unavailability or special circumstances would still have to be shown to obtain the deposition of any physician who provided medical care or diagnosis to the adverse party or who has been retained as an expert witness by the adverse party.
There is a strong judicial trend toward liberalizing the “special circumstances” provision of CPLR 3101(a). In Villano v. Conde Nast Publications, Inc., 46 A.D.2d 118 (1st Dept. 1973) the defendant moved to examine the plaintiff’s treating physicians in an action for invasion of privacy, claiming “special circumstances.” The Appellate Division reversed Special Term’s denial of the motion, stating that a mere showing by the lawyer that he needs such witnesses’ pre-trial depositions to prepare fully for the trial should suffice as a “special circumstance.” There remains a need for statutory provision clearly permitting a party to take the deposition, without the necessity of showing special circumstances, of a person authorized to practice medicine who has provided medical care or diagnosis to that party, or who has been retained by him as an expert witness. This measure would supply just such a provision and thereby provide an additional and valuable tool for the trial lawyer. It would ease the burden on litigants, lawyers, courts and physicians, especially where shortages of physicians exist. Coupled with CPLR 3117(a) (4), it would reduce the expense of litigation occasioned by physicians personally testifying at trial.
CPLR 3117(a) (4), as amended in 1977, permits the use of a deposition of a “medical witness” at the trial without the laying of a foundation or showing of special circumstances. Since the term “medical witness” may be ambiguous, this measure would also amend that provision to substitute the term “a person authorized to practice medicine.” Amended in such fashion, it would permit the use at trial of the deposition of a person authorized to practice medicine which was properly taken under CPLR 3101(a), with or without a court order, without showing special circumstances.
1976 Recommendations of the Committee to Advise and Consult with the Judicial Conference on the Civil Practice Law and Rules:
In order to ease the burden on litigants and the courts, especially where shortages of medical personnel exist, and because physicians, especially medical experts, are often unavailable to appear as witnesses on trial, and to avoid the delay in processing cases caused by numerous trial adjournments, CPLR 3117(a) should be amended to permit any party to use on trial the deposition of a medical witness without the necessity of showing unavailability or special circumstances, subject to the right of any party pursuant to CPLR 3103 to move to prevent abuse.
If CPLR 3113(b) is amended as suggested by the.
Advisory Committee, this expansion of CPLR 3117 (a) would also apply to videotaped depositions of physicians.
The term “medical witness” as used in the proposed amendment is intended to apply to a medical witness other than one who is a party to the action, as the context of the subdivision clearly indicates. The rules governing the use of depositions of parties are contained in paragraph 2 of subdivision (a) of this section and would, or course, govern the deposition of a party who also happened to be a medical person.
Amendment History
Formerly § 3117, add, L 1962, ch 308; renumbered Rule 3117, L 1962, ch 315, § 1, eff Sept 1, 1963; L 1979, ch 268, § 2, eff Jan 1, 1980; L 1993, ch 86, § 1, eff June 1, 1993; L 1996, ch 117, § 2, eff Jan 1, 1997.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
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