Opinion
October 16, 1995
Appeal from the Supreme Court, Rockland County (Weiner, J.).
Ordered that the judgment is affirmed, without costs or disbursements.
The plaintiff brought this action against the appellant, his former son-in-law, for the return of $75,000 that the plaintiff had loaned the appellant in April 1988 in order to purchase a Carvel ice-cream store. The jury found that the appellant had breached his promise to repay the plaintiff and that he had committed fraud in doing so.
The appellant contends that the trial court erred by permitting the plaintiff to offer rebuttal testimony. We disagree. Whether rebuttal evidence should be permitted rests within the sound discretion of the trial court, and its determination should not be disturbed on appeal absent an improvident exercise of discretion ( see, Saleh v. Sears, Roebuck Co., 119 A.D.2d 652; see also, Feldsberg v. Nitschke, 49 N.Y.2d 636, 643). The court in this case did not improvidently exercise its discretion by permitting the plaintiff to explain on rebuttal that he was receiving medical treatments and taking medication that caused him to become confused and to suffer from memory lapses. It does not appear that the probative value of this testimony about the plaintiff's illness and use of medication was outweighed by its potential prejudice to the appellant ( see, e.g., Kish v. Board of Educ., 76 N.Y.2d 379).
The trial court did not err by permitting the plaintiff to amend the pleadings to conform to the proof that he gave the appellant the $75,000 in one installment rather than two. The appellant, who has consistently denied the loan, made no showing that the inconsistency between the pleadings and the proof hindered him in preparing his case or prevented him from taking some measure in support of his position ( see, Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23).
The appellant's contention that an interested witness charge should have been given with respect to the plaintiff's nephew is without merit. There was no showing that the plaintiff's nephew had any interest, financial or otherwise, in the outcome of the case ( see, Coleman v. New York City Tr. Auth., 37 N.Y.2d 137, 142-143; Perrin v. Winne, 123 A.D.2d 610). Moreover, the appellant was not entitled to a missing-witness charge with respect to his ex-wife, the plaintiff's daughter ( see, People v. Erts, 73 N.Y.2d 872, 874; Eagle Pet Serv. Co. v. Pacific Empls. Ins. Co., 175 A.D.2d 471, 473).
The appellant's remaining contentions are without merit. Rosenblatt, J.P., Miller, Ritter and Friedmann, JJ., concur.