Key Takeaway
Learn why attorneys cannot object during non-party depositions in NY personal injury cases.
This article is part of our ongoing discovery coverage, with 103 published articles analyzing discovery issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
I am going to copy and paste what I think is the pertinent portion of the decision in Thompson v Mather, 2010 NY Slip Op 01239 (4th Dept. 2010):
“In its order deciding the motion, Supreme Court directed that plaintiff and defendants are to “consider providing general releases to the … with respect to their initial treatment of ” and that, if such releases are provided, plaintiff will “be entitled to have a videotaped deposition of during which deposition the attorneys for the shall not be permitted to speak … .” The order further provided that, if the general releases are not provided, then the attorneys for the parties and the physicians “shall seek to work out ground rules for a non-party deposition” of the physicians. The order then provided that, if the attorneys are unable to “work out ground rules,” plaintiff will not be entitled to take the videotaped depositions of the physicians and they “are to be subpoenaed to testify” at trial.
We agree with plaintiff that counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pre-trial deposition. CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses “shall proceed as permitted in the trial of actions in open court.” Although counsel for the physicians correctly conceded at oral argument of plaintiff’s motion in Supreme Court that she had no right to object during or to participate in the trial of this action, she nevertheless asserted that she was entitled to object during nonparty depositions and videotaped deposition questioning. We cannot agree that there is such a distinction, based on the express language of CPLR 3113 (c). Indeed, we discern no distinction between trial testimony and pre-trial videotaped deposition testimony presented at trial. We note in addition that 22 NYCRR 202.15, which concerns videotaped recordings of civil depositions, refers only to objections by the parties during the course of the deposition in the subdivision entitled “Filing and objections” (see 22 NYCRR 202.15 , ). We thus conclude that plaintiff is entitled to take the videotaped depositions of the physicians and that counsel for those physicians is precluded from objecting during or otherwise participating in the videotaped depositions.
Lastly, we note that the practice of conditioning the videotaping of depositions of nonparty witnesses to be presented at trial upon the provision of general releases is repugnant to the fundamental obligation of every citizen to participate in our civil trial courts and to provide truthful trial testimony when called to the witness stand. Contrary to nonparty respondents’ contention, the fact that the statute of limitations has not expired with respect to a nonparty treating physician witness for the care that he or she provided to a plaintiff provides no basis for such a condition.”
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Here is what this case says: 1) If you are a non-party at a deposition, then your attorney cannot say anything. It is similar to when your client testifies before a grand jury in New York. You as an attorney can sit there, but you cannot utter a peep. 2) A court, in this type of situation, must unconditionally compel a witness with knowledge of the facts to testify at a deposition. 3) I also think this case represents the reason behind the enactment of CPLR Sec. 3117(a)(4). But see, S.J. Pahng, M.D., P.C. v. Progressive Northeastern Ins. Co., 20 Misc.3d 137(A)(App. Term 2d Dept. 2007).
Related Articles
- NY EBT Venue Rules: When Courts Grant Undue Hardship Exceptions for Depositions
- Appellate Term holds CPLR 3212(f) relief is inappropriate under three separate circumstances
- EBT procedural requirements in no-fault cases
- Please be quiet during depositions
- New York No-Fault Insurance Law
Legal Update (February 2026): Since this 2010 post, CPLR 3113 and related discovery provisions may have been amended through legislative changes or court rule modifications. Additionally, appellate decisions interpreting non-party deposition procedures and counsel participation rights may have evolved. Practitioners should verify current CPLR 3113 provisions and recent case law regarding non-party witness representation during depositions.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Discovery Practice in New York Courts
Discovery is the pre-trial process through which parties exchange information relevant to the dispute. In New York, discovery practice is governed by CPLR Article 31 and involves depositions, interrogatories, document demands, and physical examinations. Disputes over the scope of discovery, compliance with demands, and sanctions for noncompliance are frequent in both no-fault and personal injury cases. These articles analyze discovery rules, court decisions on discovery disputes, and strategies for effective discovery practice.
103 published articles in Discovery
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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