Austin v. Carstens-Elliot

Appellate Division of the Supreme Court of New York

Austin v. Carstens-Elliot

39 A.D.3d 443, 831 N.Y.S.2d 734

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 3, 2007

StatusPublished

Cited by2 cases

This text of 39 A.D.3d 443 (Austin v. Carstens-Elliot) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Austin v. Carstens-Elliot, 39 A.D.3d 443, 831 N.Y.S.2d 734 (N.Y. Ct. App. 2007).

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Opinion

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from a judgment of the Supreme Court, Rockland County (Sherwood, J.), entered December 12, 2005, which, upon a jury verdict, is in favor of the defendants and against them dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiffs’ request for a missing witness charge. [444]*444Even if the plaintiffs satisfied, their initial burden of establishing a prima facie case of medical malpractice, testimony sought from that witness would have been cumulative (see Gardiner v Wertheimer, 256 AD2d 381 [1998]; Clements v Lindsey, 237 AD2d 557 [1997]; Klombers v Lefkowitz, 131 AD2d 815, 816 [1987]).

The plaintiffs’ remaining contention is unpreserved for appellate review, as it was not the subject of a timely objection at trial (see CPLR 4017, 5501[a] [3]; Saratoga Spa & Bath v Beeche Sys. Corp., 230 AD2d 326, 332-333 [1997]; Pieniewski v Benbenek, 56 AD2d 710 [1977]; Farhart v Matuljak, 283 App Div 977, 978 [1954]). Miller, J.P., Mastro, Ritter and Balkin, JJ., concur.

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In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from a judgment of the Supreme Court, Rockland County (Sherwood, J.), entered December 12, 2005, which, upon a jury verdict, is in favor of the defendants and against them dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiffs’ request for a missing witness charge. [444]*444Even if the plaintiffs satisfied, their initial burden of establishing a prima facie case of medical malpractice, testimony sought from that witness would have been cumulative (see Gardiner v Wertheimer, 256 AD2d 381 [1998]; Clements v Lindsey, 237 AD2d 557 [1997]; Klombers v Lefkowitz, 131 AD2d 815, 816 [1987]).

The plaintiffs’ remaining contention is unpreserved for appellate review, as it was not the subject of a timely objection at trial (see CPLR 4017, 5501[a] [3]; Saratoga Spa & Bath v Beeche Sys. Corp., 230 AD2d 326, 332-333 [1997]; Pieniewski v Benbenek, 56 AD2d 710 [1977]; Farhart v Matuljak, 283 App Div 977, 978 [1954]). Miller, J.P., Mastro, Ritter and Balkin, JJ., concur.

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Bluebook (online)

39 A.D.3d 443, 831 N.Y.S.2d 734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-v-carstens-elliot-nyappdiv-2007.

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