Opinion
January 28, 1992
Appeal from the Supreme Court, Bronx County (Philip Modesto, J.).
The evidence in this personal injury action, demonstrates that defendant, Mr. Kaperonis, while speeding, negligently crashed into plaintiff Konefal's car injuring both Konefal and his passenger Lauraine Merlini. Although there was some evidence that Kaperonis may have been racing with co-defendant Zef Gjelaj, the jury found Mr. Kaperonis to be 100% liable.
The record demonstrates that the IAS court consistently ruled during the trial that witnesses would not be allowed to refer to the defendants' conduct as racing or drag racing and only in the event that evidence sufficiently supported an inference of racing, would counsel be allowed to make such a reference in summation. While the evidence supported the reasonable inference that defendant may have been racing when the accident occurred (see, e.g., Taype v. City of New York, 82 A.D.2d 648, lv denied 55 N.Y.2d 608), Kaperonis himself testified that he was not racing. The jury thus fairly interpreted the evidence which should not be second guessed by this Court (Halvorsen v. Ford Motor Co., 132 A.D.2d 57, 61-62, lv denied 71 N.Y.2d 805).
The evidence indicates that plaintiff Merlini's testimony would have been, at best, cumulative. Accordingly, the ruling denying defendant's request for a missing witness charge was proper (Levande v. Dines, 153 A.D.2d 671, 672).
We have considered appellants' arguments and find them to be without merit.
Concur — Murphy, P.J., Sullivan, Ellerin and Kassal, JJ.