Opinion
November 8, 1990
Appeal from the Supreme Court, New York County (Harold Galloway, J.).
The defendant service station performed an inspection of the brakes of a State-owned automobile. The following day, as the vehicle was being driven by plaintiff Matos, with plaintiff Brown and another person as passengers, the brakes "locked", causing the car to skid and spin into a guardrail.
Contrary to the defendant's argument on appeal, the plaintiffs were not obliged to prove a precise link between specific flaws in the inspection and the resulting accident, or to eliminate with certainty any but the most remote possibilities inconsistent with a finding of negligence (see, Archie v. Todd Shipyards Corp., 65 A.D.2d 699). The plaintiffs' expert testified that, under the facts, there was no likely cause of the accident other than a negligently performed brake inspection. Contrary testimony from the defendant's expert raised only a question for the jury (Rivera v. New York City Tr. Auth., 161 A.D.2d 132).
A missing witness charge was properly given as to the defendant's employees, none of whom testified. The defendant failed to rebut the plaintiffs' prima facie showing that the garage employees would have information on a material issue, could be expected to provide noncumulative testimony favoring defendant, and would, in a broad sense, be in the defendant's control (Cornell Pharmacy v. Guzzo, 135 A.D.2d 1000, 1001, lv dismissed 71 N.Y.2d 928).
The court's charge was otherwise proper. The instructions given by the court in their totality adequately set forth the correct legal standards (Schmeider v. Montefiore Hosp. Med. Center, 122 A.D.2d 735, lv. denied 69 N.Y.2d 605).
Concur — Ross, J.P., Rosenberger, Asch, Kassal and Wallach, JJ.