Why Trust This Analysis
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.
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)
Free Consultation · No Fee Unless We Win
Does this apply to your situation?
Every case is different. Get a free, confidential case review from an experienced attorney who can tell you exactly where you stand.
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.
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
- The failure of an assignor to appear for an EBT is not a basis for a 3126 sanction against the assignee
- Remote Depositions for International Parties: Legal Precedent from Long Island and NYC Courts
- New York No-Fault Insurance Law
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.
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
Keep Reading
More Discovery Analysis
Litigation Funding Disclosure in New York: What Lituma v. Liberty Coca-Cola Means for Both Bars — and for Injured Clients
A NY appellate court allowed defendants to discover third-party litigation funding in a personal injury suit. What Lituma means for both bars and claimants.
Jun 14, 2026
Another Discovery
Appellate Term ruling on discovery objections shows courts won't disturb trial court discretion when defendants fail to timely object within CPLR's 20-day period.
May 22, 2021
Why a Substitute IME Doctor Is Not Allowed After Note of Issue in New York
NY courts restrict substitute IME doctors after note of issue filing.
Dec 21, 2015
Discovery disallowed when EUO requests are not responded to by deponent
Court rules that healthcare providers who fail to respond to EUO requests cannot challenge their reasonableness or seek discovery about scheduling letters in no-fault cases.
Sep 9, 2013
EBT in aid of arbitration? No dice.
NY court denies EBT in aid of arbitration, ruling disclosure must be "absolutely necessary" not merely convenient for no-fault insurance disputes.
May 7, 2010
Understanding Discovery Rules and Summary Judgment Timing in NY Personal Injury Cases
Learn NY discovery rules and summary judgment timing in personal injury cases. Corvino decision warns against premature motions. Call 516-750-0595.
Jan 17, 2019Was this article helpful?
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.
If you need legal help with a discovery matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
