Cidieufort v. New York City Health & Hospitals Corp.

250 A.D.2d 720, 673 N.Y.S.2d 188, 1998 N.Y. App. Div. LEXIS 5767

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Garry, J.), entered February 19, 1997, which, upon a jury verdict, is in favor of the defendant and against her, dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The plaintiff contends that she was entitled to a missing document charge as the defendant failed to produce a report of a neurology examination. A party seeking an adverse inference charge against an opponent who, as here, has failed to produce a document, must make a prima facie showing that the document in question actually exists, that it is under the opponent’s control, and that there is no reasonable explanation for failing to produce it (Scaglione v Victory Mem. Hosp., 205 AD2d 520). Nowhere in the record was the report of the neurology examination mentioned. Thus, whether or not the purported report exists is unknown, and because its existence was not established, the plaintiff failed to make the prima facie showing necessary to warrant a missing document charge.

A missing witness charge for the neurologist who allegedly performed the examination was also not warranted, since the testimony that doctor might have been expected to give was covered by the three expert witnesses who did testify at trial (see, Devaney v Catholic Med. Ctr., 231 AD2d 550; Kane v Linsky, 156 AD2d 333).

The plaintiff’s remaining contentions are either unpreserved for appellate review or without merit. Santucci, J. P., Joy, Florio and McGinity, JJ., concur.