Medina v. Chownwai

211 A.D.2d 526, 621 N.Y.S.2d 561

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 1995
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Norman Mordue, J.), entered September 24, 1993, which after a jury trial, awarded plaintiffs $342,000 plus interest, unanimously affirmed, with costs.

The trial court properly denied defendant’s motion for a missing witness charge with respect to the physician who administered plaintiff’s CT scan because the testimony that this physician might be expected to give was already in the record through the testimony of the other experts and was therefore cumulative (see, DiOrio v Scala, 183 AD2d 1065, 1067).

The trial court properly determined that there was sufficient evidence to warrant a jury charge with respect to aggravation of a preexisting injury based, in part, upon the testimony of defendant’s medical expert that plaintiff probably suffered from a chronic back condition. In any event, defendant’s argument is unpreserved, inasmuch as the sole ground for his objection at trial and his motion to set aside the verdict was that plaintiffs had failed to include such claim in their bill of particulars.

We have considered defendant’s other arguments and find them to be without merit. Concur—Rosenberger, J. P., Asch, Rubin and Nardelli, JJ.