Miller v. Kimber

Appellate Division of the Supreme Court of New York

Miller v. Kimber

181 A.D.2d 1014

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

DecidedMarch 13, 1992

StatusPublished

Cited by2 cases

This text of 181 A.D.2d 1014 (Miller v. Kimber) 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

Miller v. Kimber, 181 A.D.2d 1014 (N.Y. Ct. App. 1992).

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Opinion

— Judgment unanimously affirmed without costs. Memorandum: Supreme Court did not err by giving a missing witness charge. A missing witness charge is appropriate when a party fails to call a witness who is within his control and who would be in a position to give substantial, noncumulative testimony (Mashley v Kerr, 47 NY2d 892; Getlin v St. Vincent’s Hosp. & Med. Center, 117 AD2d 707, 709; Chandler v Flynn, 111 AD2d 300, appeal dismissed 67 NY2d 647). The fact that portions of the missing witness’s records were received into evidence did not render his testimony cumulative (see, Safdie v City of New York, 138 AD2d 361, 362). Additionally, the record indicates that the witness’s medical opinion differed from the other medical testimony offered at trial.

The x-rays should have been admitted into evidence (see, Stein v Lebowitz-Pine View Hotel, 111 AD2d 572, 574, lv denied 65 NY2d 611; CPLR 2306, 4518 [a]). However, the exclusion of the x-rays was harmless error because the x-ray reports, which explained the x-rays, were admitted.

The court’s charge on "serious injury” (Insurance Law § 5102 [d]) was proper in all respects. Finally, plaintiff failed to preserve for review his contention that a DOT document was improperly excluded from evidence. (Appeal from Judgment of Supreme Court, Monroe County, Provenzano, J. — Negligence.) Present — Boomer, J. P., Pine, Lawton, Davis and Doerr, JJ.

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— Judgment unanimously affirmed without costs. Memorandum: Supreme Court did not err by giving a missing witness charge. A missing witness charge is appropriate when a party fails to call a witness who is within his control and who would be in a position to give substantial, noncumulative testimony (Mashley v Kerr, 47 NY2d 892; Getlin v St. Vincent’s Hosp. & Med. Center, 117 AD2d 707, 709; Chandler v Flynn, 111 AD2d 300, appeal dismissed 67 NY2d 647). The fact that portions of the missing witness’s records were received into evidence did not render his testimony cumulative (see, Safdie v City of New York, 138 AD2d 361, 362). Additionally, the record indicates that the witness’s medical opinion differed from the other medical testimony offered at trial.

The x-rays should have been admitted into evidence (see, Stein v Lebowitz-Pine View Hotel, 111 AD2d 572, 574, lv denied 65 NY2d 611; CPLR 2306, 4518 [a]). However, the exclusion of the x-rays was harmless error because the x-ray reports, which explained the x-rays, were admitted.

The court’s charge on "serious injury” (Insurance Law § 5102 [d]) was proper in all respects. Finally, plaintiff failed to preserve for review his contention that a DOT document was improperly excluded from evidence. (Appeal from Judgment of Supreme Court, Monroe County, Provenzano, J. — Negligence.) Present — Boomer, J. P., Pine, Lawton, Davis and Doerr, JJ.

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181 A.D.2d 1014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-kimber-nyappdiv-1992.

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