## Facts

- Julia Wojtas alleged she was injured as a passenger in an incident involving a bus operated by Fifth Avenue Coach Corporation and driven by Charles Williams.
- Julia and her husband sued the bus company and driver for negligence; the husband sought derivative damages (medical expenses and loss of services).
- Before trial, Williams gave a deposition.
- At trial, Williams did not appear due to illness.
- Plaintiffs did not offer Williams’s deposition into evidence.
- The trial court permitted defendants to read portions of Williams’s deposition to the jury based on his illness-related unavailability.
- The jury returned a verdict for defendants.

## Issues

1. Whether the trial court erred by allowing defendants to read into evidence portions of their own driver’s deposition based on illness-related unavailability, despite plaintiffs’ decision not to introduce the deposition.

## Decision

- The Appellate Division affirmed the judgment for defendants.
- The court upheld the trial court’s ruling permitting defendants to use the driver’s deposition at trial upon a showing that illness made him unavailable.
- The court found no basis to overturn the defense verdict on the evidentiary challenge.

## Legal Principles

- A properly taken deposition may be used at trial when the deponent is unable to attend or testify because of sickness or similar incapacity, if the required predicate for unavailability is established.
- Subject to applicable limits, unavailability rules permit deposition use as substantive evidence and are not confined to the party opposing the deponent or to situations where the other side first offers the deposition.
- Admission of deposition testimony under established unavailability grounds generally will not warrant reversal absent a showing of prejudicial error affecting the verdict.

## Conclusion

The appellate court left the defense verdict intact, holding that illness-based unavailability justified allowing defendants to read portions of their driver’s deposition to the jury even though plaintiffs had not offered it.


Wojtas v. Fifth Ave. Coach Corp., 23 A.D.2d 685, 257 N.Y.S.2d 404 (2d Dep’t 1965)