Decided September 11, 1997 Appeal from (2d Dept: 237 A.D.2d 557 MOTIONS FOR LEAVE TO APPEAL
Contrary to the father's contentions, the Family Court correctly denied his objections to the Support Magistrate's order. The Support Magistrate properly declined to draw an adverse inference against the mother for her failure to produce her current child care worker to testify, as testimony from that witness would have been cumulative ( see e.g. Austin v Carstens-Elliot, 39 AD3d 443; Clements v Lindsey, 237 AD2d 557). In reviewing a determination of the Family Court, great deference should be given to the determination of the Support Magistrate, who was in the best position to evaluate the credibility of the witnesses ( see Matter of Kahl-Lapine v Lapine, 35 AD3d 611, 612; Matter of Musarra v Musarra, 28 AD3d 668, 669; Matter of Mahoney v Goggins, 24 AD3d 668, 669; Matter of Penninipede v Penninipede, 6 AD3d 445, 447).
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).
The trial court denied plaintiff's motion to set aside the verdict as inconsistent and contrary to the weight of the evidence. Plaintiff's contention that the jury verdict was inconsistent is not preserved for appellate review inasmuch as plaintiff failed to object to the verdict prior to the discharge of the jury ( see Barry v. Manglass, 55 NY2d 803; Clements v. Lindsey, 237 AD2d 557). In any event, contrary to plaintiff's contentions, the answers to the interrogatories on the verdict sheet were not internally inconsistent ( cf. Roberts v. County of Westchester, 278 AD2d 216; DePasquale v. Morbark Indus., 254 AD2d 450; Cortes v. Edoo, 228 AD2d 463).
ORDERED that the judgment is affirmed, with costs. The plaintiffs' contention that the jury verdict was inconsistent is unpreserved for appellate review (see Clements v. Lindsey, 237 A.D.2d 557). In any event, the jury verdict finding that the defendant driver was negligent but that his negligence was not a proximate cause of the accident is consistent with the evidence elicited at trial (see Schaefer v. Guddemi, 182 A.D.2d 808; Rubin v. Pecoraro, 141 A.D.2d 525).
ORDERED that the judgment is affirmed, with costs. The plaintiffs' contention that the jury verdict should be set aside as inconsistent is unpreserved for appellate review, since they did not raise that issue before the jury was discharged (see Barry v. Manglass, 55 N.Y.2d 803, 806; Clements v. Lindsey, 237 A.D.2d 557). The plaintiffs' remaining contentions are without merit.
We further conclude that the court erred in giving a missing witness charge with respect to McPherson's failure to call an orthopedic surgeon who had examined plaintiff on McPherson's behalf. A missing witness charge is not warranted with respect to a party's failure to call an examining physician where, as here, the testimony of that physician would have been cumulative to the testimony of other physicians presented by that party ( see, Feneck v. First Union Real Estate Equity Mtge. Invs. [appeal No. 2] , 266 A.D.2d 916; Cidieufort v. New York City Health Hosps. Corp., 250 A.D.2d 720, 721; Clements v. Lindsey, 237 A.D.2d 557, lv denied 90 N.Y.2d 805). The missing witness instruction in these circumstances significantly prejudiced McPherson because it permitted the jury to draw an inference that was unwarranted as a factual matter ( see, Houston v. City of New York, 256 A.D.2d 277, 278-279) and that bore on the critical issues at trial, namely, the nature, extent and permanency of plaintiff's alleged injuries and disability.
Ordered that the judgment is affirmed, with costs payable to the respondent Stephanie Hendrick. The jury verdict that the defendant driver was negligent, but that her negligence was not a proximate cause of the accident, was not inconsistent ( see, Miglino v. Supermarkets Gen. Corp., 243 A.D.2d 451; Clements v. Lindsey, 237 A.D.2d 557; Gross v. Napoli, 216 A.D.2d 524, 525; Rubin v. Pecoraro, 141 A.D.2d 525, 526). In addition, the verdict was supported by a fair interpretation of the evidence ( see, Voiclis v. International Assn. of Machinist Aerospace Workers, 239 A.D.2d 339; Corcoran v. People's Ambulette Serv., 237 A.D.2d 402, 403; Nicastro v. Park, 113 A.D.2d 129, 134).
Supreme Court properly denied plaintiff's request for a missing witness charge with respect to the physician who examined plaintiff at the request of defendants. The testimony of that physician would have constituted cumulative evidence (see, Gardiner v. Wertheimer, 256 A.D.2d 381; Clements v. Lindsey, 237 A.D.2d 557, lv denied 90 N.Y.2d 805; cf., Jordan v. Donat, 255 A.D.2d 242, 243). The court also properly denied defendants' request for a missing witness charge with respect to plaintiff's primary care physician.