J.R., an infant, by his mother and natural guardian, D.D., Plaintiff–Appellant, v. THE CITY OF NEW YORK (2026)

Horn Appellate Group, Brooklyn (Scott T. Horn of counsel), for appellant.

Muriel Goode–Trufant, Corporation Counsel, New York (Bo Malin – Mayor of counsel), for respondents.

Judgment, Supreme Court, Bronx County (Shawn T. Kelly, J.), entered April 23, 2025, upon a jury verdict in defendants' favor, dismissing the complaint, unanimously affirmed, without costs.

The trial court correctly denied plaintiff's counsel's application, during plaintiff's case-in-chief, to read from transcripts of the infant's deposition and 50–h hearing.  Plaintiff's counsel argues that, under CPLR 3117(a)(1), he is permitted to rely on that prior testimony to impeach the testimony of his client, the infant plaintiff.  However, counsel was not seeking to attack his client's credibility.  Instead, counsel sought to place plaintiff's prior testimony before the jury for the evidentiary truth of its contents under the guise of impeachment, which is not permitted (see People v. Fitzpatrick, 40 N.Y.2d 44, 50 [1976] ).  Notably, counsel did not request to read the testimony while plaintiff was on the stand (see Fowler v. Parks, 222 A.D.2d 239, 239 [1st Dept 1995], lv denied 87 N.Y.2d 809 [1996] ).  The testimony was also not admissible under CPLR 3117(a)(3)(iii).  Counsel laid no foundation for the proposition that plaintiff was unavailable to testify due to infirmity (see Sadhwani v. New York City Tr. Auth., 66 AD3d 405, 405 [1st Dept 2009], lv denied 14 NY3d 705 [2010] ).  To the contrary, plaintiff testified clearly and coherently about the facts of the accident.