Dayanim v. Unis

171 A.D.2d 579

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 26, 1991
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Vincent Bradley, J.), rendered March 23, 1990, upon a jury verdict, in favor of defendant dismissing the complaint, unanimously affirmed, without costs.

In this medical malpractice action, in which the jury found in favor of the defendant, plaintiff attributes error to various trial rulings and jury instructions. Initially, plaintiff contends that it was error to give a missing witness charge with respect to her treating physicians. To the contrary, it is well settled that a missing witness charge is warranted for the failure to call a treating physician as a witness at trial, unless the party opposing the inference shows that the witness is either unavailable, not under his control, or that the witness’s testimony would be cumulative (Moore v Johnson, 147 AD2d 621). Plaintiff did not sustain her burden in this regard. Plaintiff’s failure to object to the court’s charge on drawing an adverse inference against defendant, due to a lost audiogram that one of defendant’s witnesses performed on plaintiff, constitutes a waiver of the issue. Therefore we need not consider whether the court’s missing documents charge in that respect was proper. (Chapman v Thirty-Ninth St. Realty Corp., 26 AD2d 806.)

Plaintiff failed to lay a foundation for the admission of the office records of her treating physicians by calling a witness with personal knowledge of the doctors’ business practices and procedures. (Hefte v Beilin, 137 AD2d 406.)

The trial court did not abuse its discretion in denying plaintiff’s request to reopen the case after she had rested to call a treating physician as a rebuttal witness (see, King v Burkowski, 155 AD2d 285), as plaintiff never adequately identified the specific witness sought to be called nor indicated whether such witness would be immediately available.

We have considered plaintiff’s remaining claims and find them to be without merit. Concur — Murphy, P. J., Sullivan, Carro, Wallach and Kupferman, JJ.