Opinion
2002-05582.
Argued October 9, 2003.
November 24, 2003.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Palmieri, J.), entered May 6, 2002, which, upon a jury verdict, dismissed the complaint.
Certilman Balin Adler Hyman, LLP, East Meadow, N.Y. (Wayne J. Schaefer of counsel), for appellant.
Braff, Harris Sukoneck, New York, N.Y. (Gerald J. Gunning of counsel), for respondents Alford H. Dyer and Truck Lease Corp.
Robert P. Tusa (Sweetbaum Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for respondent Ramon Ramirez.
Before: MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, WILLIAM D. FRIEDMANN and STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, the complaint is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for a new trial.
The party seeking a missing witness charge bears the initial burden of promptly notifying the trial court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness would naturally be expected to give noncumulative testimony favorable to the party against whom the charge is sought (the "control" element), and that the witness was available to that party who has failed to call him to testify ( see People v. Savinon, 100 N.Y.2d 192, 197; People v. Gonzalez, 68 N.Y.2d 424, 427; People v. O'Hara, 253 A.D.2d 560; Germe v. City of New York, 211 A.D.2d 480). Once a party has met this burden, the opponent of the charge has the obligation to demonstrate that "the witness is not knowledgeable about the issue, that the issue is not material or relevant, that the testimony from the missing witness would be merely cumulative to other evidence, that the witness is not available or that the witness is not under the party's control such that the witness would be expected to testify in the party's favor" ( People v. Keen, 94 N.Y.2d 533, 539; see People v. Gonzales, supra at 428).
The Supreme Court erred in granting the respondents' request for a missing witness charge with respect to the appellant's ex-girlfriend. The defendants failed to carry their burden to qualify for such a charge. First, the request for such a charge was untimely since it was made after the close of all the evidence ( see People v. Carillo, 297 A.D.2d 288; People v. Tilghman, 249 A.D.2d 348; People v. Woodford, 200 A.D.2d 644). Second, the defendants failed to establish that the missing witness was under the plaintiff's control and would have been expected to provide noncumulative testimony ( see People v. Keen, supra; People v. Gonzales, supra; cf. People v. Savinon, supra at 197). Third, the defendants failed to show that the witness had noncumulative evidence to give on a material issue in dispute and to specify the issue ( see Germe v. City of New York, supra at 481; cf. People v. Kitching, 78 N.Y.2d 532, 537). In any event, the plaintiff made an adequate showing that his ex-girlfriend was not available to him ( see People v. O'Hara, supra at 561; People v. Jiminez, 176 A.D.2d 241, 242; cf. People v. Savinon, supra at 199).
Since the court erred in granting the request for a missing witness charge, and since it cannot be said that the error was harmless, a new trial is warranted ( see People v. O'Hara, supra at 562; People v. Jiminez, supra).
DECISION ORDER ON MOTION
Motion by the respondent Ramon Ramirez, joined by the respondents Alford H. Dyer and Truck Lease Corp., on an appeal from a judgment of the Supreme Court, Nassau County, entered May 6, 2002, to compel the appellant to file all trial exhibits, and separate application by the respondent Ramon Ramirez to dismiss the appeal based on spoliation of evidence.
Upon the papers filed in support of the motion and the application, the papers filed in opposition thereto, the exhibits filed with this court on June 11, 2003, and upon the argument of the appeal, it is
ORDERED that the motion and the application are denied as academic inasmuch as the appellant filed the exhibits at issue with this court on June 11, 2003.
ALTMAN, J.P., SMITH, FRIEDMANN and CRANE, JJ., concur.