Opinion
April 26, 1994
Appeal from the Supreme Court, New York County (Norman Ryp, J.).
In light of the fact that defendant's medical expert would have provided relevant and noncumulative testimony at trial that was unfavorable to defendant, i.e., testimony concerning the permanency of plaintiff's scars resulting from the surgery and the fact that said expert would have informed a patient opting for this elective surgery, prior to accepting the patient's consent to the operative procedure, that such permanent scars were to be expected as a result of the surgery, a missing witness charge should have been given by the trial court with respect to said defense expert (see, Siegfried v Siegfried, 123 A.D.2d 621). We further note that plaintiff both timely alerted the court to the missing witness prior to the jury charge and specifically requested a missing witness charge.
Concur — Rosenberger, J.P., Ellerin, Nardelli and Williams, JJ.