Opinion
3143, 3144.
Decided March 16, 2004.
Judgment, Supreme Court, New York County (Debra James, J.), entered December 13, 2002, upon a jury verdict, in favor of defendant American Airlines, Inc., unanimously affirmed, without costs. Appeal from order, same court and Justice, entered August 1, 2002, which denied plaintiff's motion pursuant to CPLR 4404 to set aside the verdict, unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.
Denise Buda, for Plaintiff-Appellant.
David S. Rutherford, for Defendant-Respondent.
Before: Tom, J.P., Andrias, Saxe, Sullivan, JJ.
Although defendant improperly determined that the notes of its claims analyst did not constitute an accident report, defendant's failure to exchange the notes was not attributable to bad faith ( cf. Sage v. Proskauer Rose LLP, 275 A.D.2d 11, 17-18), and did not require preclusion of the claims analyst's highly relevant testimony, particularly since plaintiff failed to advise defendant that the accident was first reported to this witness, a circumstance of which defendant was unaware until the eve of trial. Moreover, plaintiff's claim of error respecting this witness's testimony was unpreserved by timely objection and any objection to the introduction of the witness's notes was waived by the determination of plaintiff's counsel to use them in cross-examination.
The court properly determined that submission of the case to the jury on the theory of res ipsa loquiturwould not be appropriate since plaintiff failed to demonstrate that her fall would not have occurred in the absence of negligence and that it was not due to any voluntary action or contribution on her part ( cf. Bonura v. KWK Assocs., Inc., 2 A.D.3d 307, 2003 N.Y. App. Div LEXIS 13195).
The court properly exercised its discretion in denying plaintiff's request for a missing witness charge regarding one of defendant's employees, who could not be identified. Defendant produced another employee who had witnessed plaintiff's fall, and plaintiff failed to demonstrate that defendant was on notice that she intended to commence litigation, sufficient to require preservation of its duty roster ( see Amaris v. Sharp Elec., 304 A.D.2d 457, lv denied 1 N.Y.3d 507, 2004 N.Y. LEXIS 147).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.