Austin v. Knowlton

Appellate Division of the Supreme Court of New York

Austin v. Knowlton

234 A.D.2d 918, 651 N.Y.S.2d 795, 1996 N.Y. App. Div. LEXIS 13640

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

DecidedDecember 30, 1996

StatusPublished

Cited by3 cases

This text of 234 A.D.2d 918 (Austin v. Knowlton) 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. Knowlton, 234 A.D.2d 918, 651 N.Y.S.2d 795, 1996 N.Y. App. Div. LEXIS 13640 (N.Y. Ct. App. 1996).

Pincite

Opinion

—Judgment unanimously reversed in the exercise of discretion without costs and new trial granted. Memorandum: Supreme Court granted defendant’s request for a missing witness charge with respect to three of plaintiff’s treating or examining physicians. Plaintiff objected to the charge on the ground that the physicians were not in her control. On appeal, plaintiff contends with respect to the missing witness charge that defendant failed promptly to raise the issue, the testimony of the physicians would have been cumulative, and she had no control over them. Although only the control issue is preserved for our review (see, CPLR 5501 [a] [3]; 4110-b), we agree that the testimony of the physicians would have been cumulative and thus that the court erred in giving the missing witness charge (see, Prince, Richardson on Evidence § 3-140 (Farrell 11th ed]). Because of the critical significance of the issue of serious injury, the error was fundamental and requires a new trial in the exercise of discretion (see, DiGrazia v Castronova, 48 AD2d 249, 252; cf., Pagnella v Action for Better Community, 57 AD2d 1076).

We have considered plaintiffs remaining contentions and conclude that they are without merit. (Appeal from Judgment of Supreme Court, Cattaraugus County, Francis, J.— Negligence.) Present—Denman, P. J., Lawton, Callahan, Balio and Boehm, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Judgment unanimously reversed in the exercise of discretion without costs and new trial granted. Memorandum: Supreme Court granted defendant’s request for a missing witness charge with respect to three of plaintiff’s treating or examining physicians. Plaintiff objected to the charge on the ground that the physicians were not in her control. On appeal, plaintiff contends with respect to the missing witness charge that defendant failed promptly to raise the issue, the testimony of the physicians would have been cumulative, and she had no control over them. Although only the control issue is preserved for our review (see, CPLR 5501 [a] [3]; 4110-b), we agree that the testimony of the physicians would have been cumulative and thus that the court erred in giving the missing witness charge (see, Prince, Richardson on Evidence § 3-140 (Farrell 11th ed]). Because of the critical significance of the issue of serious injury, the error was fundamental and requires a new trial in the exercise of discretion (see, DiGrazia v Castronova, 48 AD2d 249, 252; cf., Pagnella v Action for Better Community, 57 AD2d 1076).

We have considered plaintiffs remaining contentions and conclude that they are without merit. (Appeal from Judgment of Supreme Court, Cattaraugus County, Francis, J.— Negligence.) Present—Denman, P. J., Lawton, Callahan, Balio and Boehm, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

234 A.D.2d 918, 651 N.Y.S.2d 795, 1996 N.Y. App. Div. LEXIS 13640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-v-knowlton-nyappdiv-1996.

Opinion

Related

Cite This Page — Counsel Stack