Kronenberg v. Morris

Appellate Division of the Supreme Court of New York

Kronenberg v. Morris

174 A.D.2d 610, 571 N.Y.S.2d 316, 1991 N.Y. App. Div. LEXIS 8412

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

DecidedJune 10, 1991

StatusPublished

Cited by2 cases

This text of 174 A.D.2d 610 (Kronenberg v. Morris) 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

Kronenberg v. Morris, 174 A.D.2d 610, 571 N.Y.S.2d 316, 1991 N.Y. App. Div. LEXIS 8412 (N.Y. Ct. App. 1991).

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Opinion

—In a medical malpractice action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Tanenbaum, J.), dated November 2, 1989, which, upon a jury verdict, is in favor of the defendants and against them.

Ordered that the judgment is reversed, on the law, without costs or disbursements, and a new trial is granted.

The record reveals that, over timely defense objection, the trial court permitted the injured plaintiff to testify regarding a hearsay statement made to her by a Dr. Fisher. The court allowed the testimony only after the plaintiffs’ counsel assured the court that Dr. Fisher would appear as a witness for the plaintiffs. However, the plaintiffs did not call Dr. Fisher as a witness, and the trial court consequently granted a defense motion for a missing witness charge with respect to the uncalled witness.

[611]*611We discern no improvident exercise of discretion in the court’s granting of the application for a missing witness charge, inasmuch as the damaging hearsay testimony was only permitted upon the plaintiffs’ false representation that Dr. Fisher would be called as a witness, and the plaintiffs failed thereafter to demonstrate a legitimate basis for not calling the witness (see, Siegfried v Siegfried, 123 AD2d 621; see generally, People v Gonzalez, 68 NY2d 424). However, we agree with the plaintiffs’ contention that reversal is necessary because the text of the missing witness instruction given by the court was unfairly prejudicial to them. Indeed, the trial court incorrectly instructed the jurors that they were required, rather than permitted, to draw the strongest inferences against the plaintiffs by reason of their failure to call Dr. Fisher (cf., PJI 1:75). Moreover, the court’s supplemental missing witness instruction failed to correct this error. Accordingly, a new trial is granted. Kunzeman, J. P., Kooper, Sullivan and Lawrence, JJ., concur.

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—In a medical malpractice action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Tanenbaum, J.), dated November 2, 1989, which, upon a jury verdict, is in favor of the defendants and against them.

Ordered that the judgment is reversed, on the law, without costs or disbursements, and a new trial is granted.

The record reveals that, over timely defense objection, the trial court permitted the injured plaintiff to testify regarding a hearsay statement made to her by a Dr. Fisher. The court allowed the testimony only after the plaintiffs’ counsel assured the court that Dr. Fisher would appear as a witness for the plaintiffs. However, the plaintiffs did not call Dr. Fisher as a witness, and the trial court consequently granted a defense motion for a missing witness charge with respect to the uncalled witness.

[611]*611We discern no improvident exercise of discretion in the court’s granting of the application for a missing witness charge, inasmuch as the damaging hearsay testimony was only permitted upon the plaintiffs’ false representation that Dr. Fisher would be called as a witness, and the plaintiffs failed thereafter to demonstrate a legitimate basis for not calling the witness (see, Siegfried v Siegfried, 123 AD2d 621; see generally, People v Gonzalez, 68 NY2d 424). However, we agree with the plaintiffs’ contention that reversal is necessary because the text of the missing witness instruction given by the court was unfairly prejudicial to them. Indeed, the trial court incorrectly instructed the jurors that they were required, rather than permitted, to draw the strongest inferences against the plaintiffs by reason of their failure to call Dr. Fisher (cf., PJI 1:75). Moreover, the court’s supplemental missing witness instruction failed to correct this error. Accordingly, a new trial is granted. Kunzeman, J. P., Kooper, Sullivan and Lawrence, JJ., concur.

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Bluebook (online)

174 A.D.2d 610, 571 N.Y.S.2d 316, 1991 N.Y. App. Div. LEXIS 8412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kronenberg-v-morris-nyappdiv-1991.

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