Opinion
February 23, 2000
Judgment, Supreme Court, New York County (Robert Whelan, J.), entered January 7, 1999, which, upon a jury verdict in defendants' favor, dismissed the complaint in this action to recover for personal injuries, unanimously affirmed, without costs.
William Gardiner, for Plaintiff-Appellant.
Miriam Skolnik, for Defendants-Respondents.
TOM, J.P., RUBIN, ANDRIAS, BUCKLEY, FRIEDMAN, JJ.
Plaintiff's application at trial to read the deposition of a nonparty witness into evidence was properly denied since plaintiff did not make the requisite diligent effort to procure the witness's attendance (see, CPLR 3117[a][3][iv]). Moreover, in light of the evidence considered by the jury, any error in the exclusion of the nonparty witness's deposition testimony would have been harmless (see, Tannen v. Long Island R.R., 215 A.D.2d 745).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.