Dailey v. Keith, 806 N.E.2d 130 (N.Y. 2004). · Go Syfert
Search
Dailey v. Keith, 806 N.E.2d 130 (N.Y. 2004). Cases Citing This Book View Copy Cite
18 citation events (18 in the last 25 years) across 1 distinct court.
Strongest positive: Barnes v. City of New York (nyappdiv, 2007-07-26)
Top citers, strongest first. 2 distinct citers. How cited ↗
discussed Cited as authority (rule) Barnes v. City of New York
N.Y. App. Div. · 2007 · confidence medium
That subsection provides that a deposition of a party may be used if the court finds “that the witness is at a greater distance than one hundred miles from the place of trial or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition.” Thus, a party may not voluntarily absent himself and then use his deposition testimony or, as here, his 50-h hearing testimony (see Dailey v Keith, 1 NY3d 586, 587 [2004] [“By voluntarily leaving the state and refusing to return for trial, defendant procured her own absence and, therefore, fa…
discussed Cited as authority (rule) Felitti v. Daughriety
N.Y. App. Div. · 2004 · confidence medium
To the extent that the jury’s assignment of a period for future pain and suffering of 45 years appears inconsistent with the two specific findings of no permanency (cf. Preston v Young, 239 AD2d 729, 732 [1997]), the purported inconsistency was not raised before the jury was discharged and thus was not properly preserved for review (see Sotomayor v Enterprise Packaging Corp., 10 AD3d 603, 603 [2004]; Dailey v Keith, 306 AD2d 815, 817 [2003], affd 1 NY3d 586, 587 [2004]; Preston v Young, supra at 732 ).
Retrieving the full opinion text from the archive…
Randall D. Dailey, Sr., Et Al., Respondents,
v.
Patricia Keith Et Al., Appellants
New York Court of Appeals.
Jan 12, 2004.
806 N.E.2d 130
2004 N.Y. LEXIS 53
APPEARANCES OF COUNSEL, Davidson & O’Mara, EC., Elmira (Ransom E Reynolds, Jr., and Bryan J. Maggs of counsel), for appellants., Paul A. Argentieri, Hornell, for respondents.
Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read Concur in Memorandum.
Cited by 13 opinions  |  Published

OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. In exercising their discretion, the courts below did not err as a matter of law in refusing to allow the introduction of defendant’s deposition testimony at trial as evidence-in-chief. By voluntarily leaving the state and refusing to return for trial, defendant procured her own absence and, therefore, failed to satisfy CPLR 3117 (a) (3) (ii) (see United Bank v Cambridge Sporting Goods Corp., 41 NY2d 254, 264-265 [1976]). Thus, the deposition testimony was not admissible as of right.

Defendants’ remaining contentions are either unpreserved or lacking in merit.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graefeo and Read concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), orders affirmed, etc.