Key Takeaway
New York court rules that defendants can introduce deposition testimony of unavailable party witness at trial, despite plaintiff's objections and missing witness charge request.
When a Party’s Own Witness Goes Missing: Deposition Evidence Still Admissible
In litigation, parties sometimes face the challenging situation where a key witness becomes unavailable for trial. This scenario raises important questions about what evidence can still be presented to the court and whether opposing counsel can request jury instructions about missing witnesses. The Second Department’s decision in Arad v Hanza, LLC provides crucial guidance on how courts handle these situations when a party cannot locate their own witness.
Understanding the rules around discovery procedures and witness availability becomes particularly important in personal injury cases, where witness testimony often plays a pivotal role in establishing liability and damages.
Jason Tenenbaum’s Analysis:
Arad v Hanza, LLC, 2013 NY Slip Op 05786 (2d Dept. 2013)
I would put this in the category of short but potent procedural cases:
“Contrary to the plaintiff’s contentions, the Supreme Court did not err in permitting the defendants to introduce the deposition testimony of the defendant Amadou Bah at trial due to Bah’s unavailability, in light of the diligent but unsuccessful efforts of the defendants to locate him (see CPLR 3117; cf. Dailey v Keith, 306 AD2d 815, affd 1 NY3d 586).
The court also properly denied the plaintiff’s request for a missing witness charge as to Bah, as “a genuine inability to locate a witness will foreclose a missing witness instruction”
Can’t locate your client? No problem.
Key Takeaway
When a party makes diligent efforts to locate an unavailable witness but cannot find them, courts will allow previously taken deposition testimony to be admitted at trial. Additionally, the opposing party cannot obtain a missing witness jury instruction when there is a genuine inability to locate the witness, even if that witness was originally aligned with the other side.
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Legal Update (February 2026): The CPLR 3117 provisions governing the admissibility of deposition testimony from unavailable witnesses may have been subject to amendments or judicial interpretations since this 2013 analysis. Additionally, procedural requirements for demonstrating “diligent efforts” to locate witnesses and related evidentiary standards may have evolved through subsequent case law. Practitioners should verify current CPLR 3117 requirements and recent appellate decisions regarding unavailable witness testimony admissibility.
