Arad v Hanza, LLC, 2013 NY Slip Op 05786 (2d Dept. 2013)
I would put this in the category of short but potent procedural cases:
“Contrary to the plaintiff’s contentions, the Supreme Court did not err in permitting the defendants to introduce the deposition testimony of the defendant Amadou Bah at trial due to Bah’s unavailability, in light of the diligent but unsuccessful efforts of the defendants to locate him (see CPLR 3117[a][3][iv]; cf. Dailey v Keith, 306 AD2d 815, affd 1 NY3d 586).
The court also properly denied the plaintiff’s request for a missing witness charge as to Bah, as “a genuine inability to locate a witness will foreclose a missing witness instruction”
Can’t locate your client? No problem.
