Decided January 12, 2004

Dailey v Keith, 306 AD2d 815, affirmed.

Dailey v Keith, 306 AD2d 817, affirmed.

APPEARANCES OF COUNSEL

Davidson & O'Mara, P.C., Elmira (Ransom P. Reynolds, Jr., and Bryan J. Maggs of counsel), for appellants.

Paul A. Argentieri, Hornell, for respondents.

Memorandum.

The orders of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. In exercising their discretion, the courts below did not err as a matter of law in refusing to allow the introduction of defendant's deposition testimony at trial as evidence-in-chief. By voluntarily leaving the state and refusing to return for trial, defendant procured her own absence and, therefore, failed to satisfy CPLR 3117 (a) (3) (ii) (see United Bank v Cambridge Sporting Goods Corp., 41 NY2d 254, 264-265 [1976]). Thus, the deposition testimony was not admissible as of right.

Defendants' remaining contentions are either unpreserved or lacking in merit.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), orders affirmed, etc.