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Austin v. Elliot

Appellate Division of the Supreme Court of New York, Second Department
Apr 3, 2007
39 A.D.3d 443 (N.Y. App. Div. 2007)

Opinion

No. 2006-00830.

April 3, 2007.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from a judgment of the Supreme Court, Rockland County (Sherwood, J.), entered December 12, 2005, which, upon a jury verdict, is in favor of the defendants and against them dismissing the complaint.

Dankner Milstein, P.C. (Alexander J. Wulwick, New York, N.Y., of counsel), for appellants.

Westermann, Hamilton, Sheehy, Aydelott Keenan, LLP, White Plains, N.Y. (Christopher P. Keenan and Tom Kullen of counsel), for respondents.

Before: Miller, J.P., Mastro, Ritter and Balkin, JJ., concur.


Ordered that the judgment is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiffs' request for a missing witness charge. Even if the plaintiffs satisfied their initial burden of establishing a prima facie case of medical malpractice, testimony sought from that witness would have been cumulative ( see Gardiner v Wertheimer, 256 AD2d 381; Clements v Lindsey, 237 AD2d 557; Klombers v Lefkowitz, 131 AD2d 815, 816).

The plaintiffs' remaining contention is unpreserved for appellate review, as it was not the subject of a timely objection at trial ( see CPLR 4017, 5501 [a] [3]; Saratoga Spa Bath v Beeche Sys. Corp., 230 AD2d 326, 332-333; Pieniewski v Benbenek, 56 AD2d 710; Farhart v Matuljak, 283 App Div 977, 978).


Summaries of

Austin v. Elliot

Appellate Division of the Supreme Court of New York, Second Department
Apr 3, 2007
39 A.D.3d 443 (N.Y. App. Div. 2007)
Case details for

Austin v. Elliot

Case Details

Full title:CHARLES AUSTIN et al., Appellants, v. LYNNEA CARSTENS-ELLIOT et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 3, 2007

Citations

39 A.D.3d 443 (N.Y. App. Div. 2007)
2007 N.Y. Slip Op. 2865
831 N.Y.S.2d 734

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