Opinion
2001-02216, 2001-02689
Argued April 22, 2002.
August 26, 2002.
In an action to recover damages for personal injuries, the defendants appeal from (1) a judgment of the Supreme Court, Suffolk County (Seidell, J.), entered February 9, 2001, and (2) a judgment of the same court, entered March 1, 2001, which, after a jury trial on the issue of liability (Cannavo, J.), finding the defendants 76% at fault in the happening of the accident and the plaintiff 24% at fault, and upon a jury verdict on the issue of damages, is in favor of the plaintiff and against them in the principal sum of $38,000.
Robert P. Tusa, Hauppauge, N.Y. (Marcia M. Brin of counsel), for appellants.
Tierney Tierney, Port Jefferson, N.Y. (George W. Clarke of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, JJ.
ORDERED that the appeal from the judgment entered February 9, 2001, is dismissed, as that judgment was superseded by the judgment entered March 1, 2001; and it is further,
ORDERED that the judgment entered March 1, 2001, is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The defendants contend that the trial court erred in giving a missing witness charge with respect to the physicians who examined the plaintiff on their behalf. We disagree. "When a doctor who examines the plaintiff on the defendant's behalf does not testify at trial, an inference generally arises that the testimony of such witness would be unfavorable to the defendant unless he [or she] demonstrates that the testimony would be merely cumulative, the witness was unavailable or not under his [or her] control, or that the witness would address matters not in dispute" (Brueckner v. Simpson, 206 A.D.2d 448; see Arroyo v. City of New York, 171 A.D.2d 541, 544; Levande v. Dines, 153 A.D.2d 671, 672). Since the defendants failed to make this required showing, the trial court properly granted the plaintiff's request for a missing witness charge (see Placakis v. City of New York, 289 A.D.2d 551, 552-553; Iovine v. City of New York, 286 A.D.2d 372, 373; Staltare v. DB Distribs., 281 A.D.2d 469, 470; Jordan v. Donat, 255 A.D.2d 242, 243; Ghize v. Kinney Drugs, 177 A.D.2d 784, 785).
The defendants' remaining contentions do not require reversal.
SANTUCCI, J.P., S. MILLER, KRAUSMAN and GOLDSTEIN, JJ., concur.