N.Y. Comp. Codes R. & Regs. tit. 12 § 65.50

Current through Register Vol. 46, No. 45, November 2, 2024

Section 65.50 - Deposition in place of oral testimony

(a) A deposition in lieu of oral testimony ordinarily will not be allowed, except in exigent circumstances. An application to take the deposition of a witness in lieu of oral testimony must be in writing and must set forth the reasons such deposition should be taken, the name and address of the witness, the matters concerning which it is expected they will testify and the time and place proposed for the taking of the deposition, together with the name and address of the officer before whom it is desired that the deposition be taken. Such application must be filed with the Board, with proof of service on all other parties. If the application is granted, the Board will make and serve on the parties an order which specifies the name of the witness whose deposition is to be taken and the time, place and designation of the officer before whom the witness is to testify.

(b) Such deposition, when permitted by the Board, may be taken before any officer authorized to administer oaths by the laws of the State of New York, or of the place where the examination is held.

(c) At the time and place specified in the order, the officer designated to take such deposition will permit the witness to be examined and cross-examined under oath or affirmation by all parties appearing, and the questions asked of and answers given by the witness will be recorded verbatim and reduced to typewriting by the officer before whom the deposition is taken or under his or her direction.

(d) All objections to questions or evidence are deemed waived unless made at the examination. The officer does not have power to rule upon any objection, but they shall note them upon the deposition. The testimony will be subscribed by the witness in the presence of the officer, who shall attach his or her certificate stating that the witness was duly sworn, that the deposition is a true record of the testimony and exhibits given by the witness, and that the officer is not of counsel or attorney to any of the parties nor interested in the proceeding. If the deposition is not signed by the witness because they are ill, dead, cannot be found, or refuse to sign it, such fact will be included in the certificate of the officer and the deposition may be used as fully as though signed. The officer will immediately deliver, in accordance with sections 65.16 and 65.17 of these rules, a copy of the transcript, together with the officer's certificate, in person or by certified mail to the Board at its Albany office.

(e) The Board will rule upon the admissibility of the deposition or any part thereof.

(f) The right to object to any error or irregularity that does not comply with the provisions of this rule shall be deemed waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, discovered.

(g) If the parties so stipulate in writing, the deposition may be taken before any person at any time or place, upon any notice and in any manner, and when so taken may be used as other depositions.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 65.50

Adopted New York State Register March 30, 2022/Volume XLIV, Issue 13, eff. 3/30/2022