In Schroder v. Consolidated Edison Co. of N.Y. (249 AD2d 69, 670 N.Y.S.2d 856 [1st Dept 1998]), the plaintiff testified at her deposition that she fell on "broken, uneven pavement in the roadway" (id.).
The psychiatrist noted in a psychiatric record that plaintiff "tripped and fell on a ConEd metal plate" (id.).
The Court held that the deposition was "material and necessary" and, although plaintiff's statement was admissible as an admission of a party opponent, the psychiatric record itself was inadmissible because it was not relevant to diagnosis or treatment (id. at 70).
Therefore, "the testimony of the pyschiatrist was necessary to bring the plaintiff's prior, inconsistent version of events before the jury" (id. at 71).