National Hotel Management Corp. v. Shelton Towers Associates

Judgment, Supreme Court, New York County (Myriam J. Altman, J.), entered October 26, 1990, awarding damages in favor of plaintiff National Hotel Management Corporation and against defendants, unanimously affirmed, with costs.

There is no merit to defendant-appellant’s argument that upon assertion of his Fifth Amendment privilege against self-incrimination, he should have been deemed unavailable within the meaning of CPLR 4517, and all of the testimony he gave in a previous trial of this matter ( 111 AD2d 154 , mot to dismiss appeal granted 65 NY2d 1053 ) allowed into evidence. Under CPLR 4517, prior "testimony may not be used if the witness’ unavailability was procured by * * * the proponent of his statement.” Such is the situation here, where the party invoking the privilege is the proponent of his own prior testimony. As in Federal Chandros v Silverite Constr. Co. ( 167 AD2d 315 , lv denied 77 NY2d 893 ), the party asserting the privilege cannot accept its benefits without also accepting its consequences, all the more so here, where the party refuses to answer any questions at all, and not just those the answers to which are reasonably believed to be incriminatory (see, Matter of Agnello v Corbisiero, 177 AD2d 445, 446 , lv denied 79 NY2d 758 ). Concur — Carro, J. P., Ellerin, Kupferman and Kassal, JJ.