S T A T E O F N E W Y O R K
________________________________________________________________________
8561--B
1999-2000 Regular Sessions
I N A S S E M B L Y
May 25, 1999
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Weinstein)
-- (at request of the Office of Court Administration) -- read once and
referred to the Committee on Codes -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee -- recommitted to the Committee on Codes in accordance with Assem-
bly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the civil practice law and rules, in relation to the use
of prior testimony in a civil action and to repeal rule 4517 of such
law and rules relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Rule 4517 of the civil practice law and rules is REPEALED
2 and a new rule 4517 is added to read as follows:
3 RULE 4517. PRIOR TESTIMONY IN A CIVIL ACTION. (A) IMPEACHMENT OF
4 WITNESSES; PARTIES; UNAVAILABLE WITNESS. IN A CIVIL ACTION, AT THE TRIAL
5 OR UPON THE HEARING OF A MOTION OR AN INTERLOCUTORY PROCEEDING, ALL OR
6 ANY PART OF THE TESTIMONY OF A WITNESS THAT WAS TAKEN AT A PRIOR TRIAL
7 IN THE SAME ACTION OR AT A PRIOR TRIAL INVOLVING THE SAME PARTIES OR
8 THEIR REPRESENTATIVES AND ARISING FROM THE SAME SUBJECT MATTER, SO FAR
9 AS ADMISSIBLE UNDER THE RULES OF EVIDENCE, MAY BE USED IN ACCORDANCE
10 WITH ANY OF THE FOLLOWING PROVISIONS:
11 1. ANY SUCH TESTIMONY MAY BE USED BY ANY PARTY FOR THE PURPOSE OF
12 CONTRADICTING OR IMPEACHING THE TESTIMONY OF THE SAME WITNESS;
13 2. THE PRIOR TRIAL TESTIMONY OF A PARTY OR OF ANY PERSON WHO WAS A
14 PARTY WHEN THE TESTIMONY WAS GIVEN OR OF ANY PERSON WHO AT THE TIME THE
15 TESTIMONY WAS GIVEN WAS AN OFFICER, DIRECTOR, MEMBER, EMPLOYEE, OR
16 MANAGING OR AUTHORIZED AGENT OF A PARTY, MAY BE USED FOR ANY PURPOSE BY
17 ANY PARTY WHO IS ADVERSELY INTERESTED WHEN THE PRIOR TESTIMONY IS
18 OFFERED IN EVIDENCE;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
{ } is old law to be omitted.
LBD08659-06-0
A. 8561--B 2
1 3. THE PRIOR TRIAL TESTIMONY OF ANY PERSON MAY BE USED BY ANY PARTY
2 FOR ANY PURPOSE AGAINST ANY OTHER PARTY, PROVIDED THE COURT FINDS:
3 (I) THAT THE WITNESS IS DEAD; OR
4 (II) THAT THE WITNESS IS AT A GREATER DISTANCE THAN ONE HUNDRED MILES
5 FROM THE PLACE OF TRIAL OR IS OUT OF THE STATE, UNLESS IT APPEARS THAT
6 THE ABSENCE OF THE WITNESS WAS PROCURED BY THE PARTY OFFERING THE TESTI-
7 MONY; OR
8 (III) THAT THE WITNESS IS UNABLE TO ATTEND OR TESTIFY BECAUSE OF AGE,
9 SICKNESS, INFIRMITY, OR IMPRISONMENT; OR
10 (IV) THAT THE PARTY OFFERING THE TESTIMONY HAS BEEN UNABLE TO PROCURE
11 THE ATTENDANCE OF THE WITNESS BY DILIGENT EFFORTS; OR
12 (V) UPON MOTION ON NOTICE, THAT SUCH EXCEPTIONAL CIRCUMSTANCES EXIST
13 AS TO MAKE ITS USE DESIRABLE, IN THE INTEREST OF JUSTICE AND WITH DUE
14 REGARD TO THE IMPORTANCE OF PRESENTING THE TESTIMONY OF WITNESSES ORALLY
15 IN OPEN COURT;
16 4. THE PRIOR TRIAL TESTIMONY OF A PERSON AUTHORIZED TO PRACTICE MEDI-
17 CINE MAY BE USED BY ANY PARTY WITHOUT THE NECESSITY OF SHOWING UNAVAIL-
18 ABILITY OR SPECIAL CIRCUMSTANCES SUBJECT TO THE RIGHT OF ANY PARTY TO
19 MOVE FOR PRECLUSION UPON THE GROUND THAT ADMISSION OF THE PRIOR TESTIMO-
20 NY WOULD BE PREJUDICIAL UNDER THE CIRCUMSTANCES.
21 (B) USE OF PART OF THE PRIOR TRIAL TESTIMONY OF A WITNESS. IF ONLY
22 PART OF THE PRIOR TRIAL TESTIMONY OF A WITNESS IS READ AT THE TRIAL BY A
23 PARTY, ANY OTHER PARTY MAY READ ANY OTHER PART OF THE PRIOR TESTIMONY OF
24 THAT WITNESS THAT OUGHT IN FAIRNESS TO BE CONSIDERED IN CONNECTION WITH
25 THE PART READ.
26 (C) SUBSTITUTION OF PARTIES; PRIOR ACTIONS. SUBSTITUTION OF PARTIES
27 DOES NOT AFFECT THE RIGHT TO USE TESTIMONY PREVIOUSLY TAKEN AT TRIAL.
28 S 2. This act shall take effect on the first day of January next
29 succeeding the date on which it shall have become a law, and shall apply
30 to actions in which trial commences on or after such date.
.SO DOC A 8561B *END* BTXT 1999
Bill A08561
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