Belmont v. Palm Beach Club, Inc.

244 A.D.2d 904, 668 N.Y.S.2d 115

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1997
• Docket: Appeal No. 5
• Status: Published

Opinion

—Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant’s request for a missing witness charge with respect to plaintiff’s treating neurologist. It is apparent that any testimony that the neurologist might have been expected to give was already before the jury through medical reports and other expert testimony. Thus, that testimony would have been cumulative (see, Austin v Knowlton, 234 AD2d 918; Butts v Braun, 204 AD2d 1069).

We reject defendant’s contention that the jury’s award for past and future pain and suffering is excessive. The award does not deviate materially from what would be reasonable compensation (see, CPLR 5501 [c]; Harvey v Mazal Am. Partners, 79 NY2d 218, 225). (Appeal from Judgment of Supreme Court, Oneida County, Grow, J.—Damages.) Present—Denman, P. J., Pine, Wisner, Balio and Boehm, JJ.