Opinion
(1460) CA 01-00987.
November 9, 2001.
(Appeal from Judgment of Supreme Court, Erie County, Sedita, Jr., J. — Negligence.)
PRESENT: PINE, J.P., HAYES, HURLBUTT, KEHOE AND LAWTON, JJ.
Judgment unanimously affirmed without costs.
Memorandum:
We reject plaintiff's contention that the verdict is against the weight of the evidence. A jury verdict should not be set aside as against the weight of the evidence unless a jury could not have reached its verdict on any fair interpretation of the evidence ( see, Riggio v. New Creation Fellowship, 249 A.D.2d 942; Nicastro v. Park, 113 A.D.2d 129, 134). Defendant presented expert medical testimony that conflicted with that presented by plaintiff, and the jury was entitled to resolve any credibility issues against plaintiff. We further reject plaintiff's contention that Supreme Court erred in refusing to give a missing witness charge with respect to three physicians because the testimony of those physicians would have been cumulative. "`Whether evidence should be excluded as cumulative is a matter that rests within the sound discretion of the trial court'" ( Wisholek v. Douglas, 280 A.D.2d 220, 223-224, quoting Rosabella v. Fanelli, 225 A.D.2d 1007, 1008). Finally, we reject plaintiff's contention that the court erred in refusing to charge the doctrine of res ipsa loquitur. The evidence did not establish that plaintiff's artery would not have been severed in the absence of negligence ( see, Sapienza v. County of Erie, 270 A.D.2d 907, 907-908).