Kupferman and Rubin, JJ., dissent in a memorandum by Rubin, J., as follows: Granting that it was error to admit into evidence the police complaint report containing the statement, "[wjitness stated truck was from UPS”, defendant has nevertheless failed to demonstrate that it sustained prejudice as a result of this ruling. Defendant’s Exhibit A, the police complaint follow-up report, states that the offending vehicle was "described as possibly being a United Parcel Truck”, and the deposition of Jose De LaRosa, read into evidence (CPLR 3117 *525[a] [3] [iii]), states unequivocally that he reported as much to the police at the scene. The court, in its instructions to the jury, made it plain that ownership of the truck was the main point of contention between the parties and that plaintiff relied on the testimony of Jose De LaRosa to show that it was owned and operated by defendant. Thus, it would seem that introduction of this evidence was harmless (see, Fishman v Scheuer, 39 NY2d 502) and that the outcome would have been no different had the evidence been excluded (Cotter v Mercedes-Benz Manhattan, 108 AD2d 173, 180).
As to the admissibility of De LaRosa’s criminal record, while the conviction of a "witness” may be proved "either by cross-examination * * * or by the record” (CPLR 4513), defendant has failed to demonstrate that this rule is applicable where, as here, the witness is unavailable and his deposition is instead read into the record (CPLR 3117 [a] [3]). The competency of this witness and the admissibility of his testimony are not disputed (CPLR 3115 [d]; 4513). The pertinent rule provides that "any party may rebut any relevant evidence contained in a deposition” (CPLR 3117 [d]) but does not provide that a party may go beyond the material contained in the deposition to attack the credibility of the deponent. Clearly, to permit such an attack under these circumstances would deprive plaintiff of the opportunity to rehabilitate his witness (Derrick v Wallace, 217 NY 520, 525) and deprive the witness of the opportunity to explain the circumstances surrounding his conviction (People v Tait, 234 App Div 433, affd 259 NY 599) or perhaps assert his innocence (Sims v Sims, 75 NY 466), although there is some controversy on this point (compare, People v Tait, supra).
Defendant failed to avail itself of the opportunity to impeach Mr. De LaRosa’s credibility during the course of his examination before trial. The examination was conducted at the Westchester Penitentiary, and defendant cannot claim lack of notice of the witness’ criminal record which was extensive, dating back to 1981 and including felony and misdemeanor convictions for prostitution, grand larceny, burglary, criminal trespass, possession of burglary tools and possession of stolen property. (Subsequent to the taking of the deposition, he was convicted of armed illegal entry and committed to the Downstate Correctional Facility.) The witness would have been required to answer questions regarding any convictions on the occasion of his deposition (CPLR 4513; Guarisco v E.J. Milk Farms, 90 Misc 2d 81).
Defendant may not, at this late stage in the proceedings, *526take advantage of its own omission to deprive opposing counsel of the opportunity to examine a witness regarding an item sought to be introduced into evidence. Defendant cannot dispute that its strategy amounts to unfair surprise when plaintiff would be placed in the untenable position of having no witness present in court to whom to address his questions. Furthermore, while the excerpts from the testimony indicate that a record of convictions was marked for identification, the only certified copy of convictions annexed to the papers filed is dated June 26, 1990. This certified copy was obtained by a so-ordered subpoena dated June 21, 1990 — 21 days following the return of the jury verdict. Finally, defendant does not explain why, upon learning of the criminal record, it failed to request a further deposition to examine the witness on the question of his credibility (CPLR 3102 [d]) by the introduction of the record of convictions.
Accordingly, the judgment of the Supreme Court, New York County (Burton S. Sherman, J.), entered June 26, 1990, after jury trial, in favor of plaintiff and against defendant United Parcel Service in the sum of $333,350.62, should be affirmed, without costs.