Opinion
December 3, 1992
Appeal from the Supreme Court, New York County (Myriam J. Altman, J.).
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 A.D.2d 154, mot to dismiss appeal granted 65 N.Y.2d 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 A.D.2d 315, lv denied 77 N.Y.2d 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 A.D.2d 445, 446, lv denied 79 N.Y.2d 758).
Concur — Carro, J.P., Ellerin, Kupferman and Kassal, JJ.