Opinion
November 24, 1998
Appeal from the Supreme Court, Bronx County (Bertram Katz, J.).
The missing witness instruction was warranted since defendants did not demonstrate that the physicians who had examined plaintiffs on defendants' behalf were unavailable, or that their testimony would be cumulative ( see, People v. Gonzalez, 68 N.Y.2d 424, 427). In addition, since the record supports the trial court's implicit determination that this case involved "serious injury" as a matter of law, the court's failure to charge as to the no-fault threshold was not erroneous. Finally, in light of the evidence indicating that the 31-year-old plaintiff would suffer substantial pain from her back injuries, which injuries include one herniated and four bulging discs, the award to her of $175,000 for future pain and suffering did not deviate from reasonable compensation under the circumstances ( see, Skow v. Jones, Lang Wooton Corp., 240 A.D.2d 194).
Concur — Lerner, P. J., Williams, Tom and Andrias, JJ.