Appeal by defendant as limited by his brief from so much of a judgment of the Civil Court, Richmond County (P. Straniere, J.), entered on June 4, 2003, as awarded plaintiff the principal sum of $20,000, plus interest.

Judgment insofar as appealed from unanimously reversed without costs and complaint dismissed.

In our view, the judgment awarding plaintiff the principal sum of $20,000, plus interest, cannot be sustained. After finding that the testimony at trial of both parties was
not credible, the court below improperly relied on the deposition testimony of plaintiff in
finding in plaintiff's favor. We note that at trial, plaintiff recanted said testimony and asserted a totally different version of the events. Moreover, deposition testimony cannot be used as evidence in chief to establish plaintiff's claim to recover on the promissory note (Roge v Valentine, 280 NY 268 [1939]; Mravlja v Hoke, 22 AD2d 848 [1964]). In view of the foregoing, the judgment insofar as appealed from should be reversed and the complaint dismissed. We further note that defendant raises no issue on appeal concerning the dismissal of his counterclaim.
Decision Date: September 29, 2004