Padilla v. City of New York

Appellate Division of the Supreme Court of New York

Padilla v. City of New York

255 A.D.2d 271, 680 N.Y.S.2d 503, 1998 N.Y. App. Div. LEXIS 12736

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

DecidedNovember 24, 1998

StatusPublished

Cited by1 cases

This text of 255 A.D.2d 271 (Padilla v. City of New York) 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

Padilla v. City of New York, 255 A.D.2d 271, 680 N.Y.S.2d 503, 1998 N.Y. App. Div. LEXIS 12736 (N.Y. Ct. App. 1998).

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Opinion

—Judgment, Supreme Court, New York County (Robert Lippmann, J.), entered April 17, 1998, upon a jury verdict, in defendant’s favor, unanimously affirmed, without costs.

The trial court did not err by denying plaintiff’s request for a missing witness charge where testimony by the Emergency Medical Service technician who refused to testify would have been cumulative of the testimony of his partner on the material issue of where plaintiff was found (see, e.g., Dowling v 257 Assocs., 235 AD2d 293; Lipp v Saks, 129 AD2d 681, 683), and where defense counsel adequately explained the witness’s lack of availability (see, People v Gonzalez, 68 NY2d 424, 428). Moreover, we note that plaintiff was allowed to mention the witness’s absence in summation (see, DeVaul v Carvigo, Inc., 138 AD2d 669, lv denied 72 NY2d 806, appeal dismissed 72 NY2d 914), and that any error in restricting comment in this regard was harmless. Finally, we discern no improvident exercise of discretion in the trial court’s rulings sustaining certain objections to questions asked by plaintiffs counsel on cross-examination (see, People v Sandoval, 34 NY2d 371, 374; Murphy v Estate of Vece, 173 AD2d 445). Concur — Rosenberger, J. P., Nardelli, Wallach and Rubin, JJ.

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—Judgment, Supreme Court, New York County (Robert Lippmann, J.), entered April 17, 1998, upon a jury verdict, in defendant’s favor, unanimously affirmed, without costs.

The trial court did not err by denying plaintiff’s request for a missing witness charge where testimony by the Emergency Medical Service technician who refused to testify would have been cumulative of the testimony of his partner on the material issue of where plaintiff was found (see, e.g., Dowling v 257 Assocs., 235 AD2d 293; Lipp v Saks, 129 AD2d 681, 683), and where defense counsel adequately explained the witness’s lack of availability (see, People v Gonzalez, 68 NY2d 424, 428). Moreover, we note that plaintiff was allowed to mention the witness’s absence in summation (see, DeVaul v Carvigo, Inc., 138 AD2d 669, lv denied 72 NY2d 806, appeal dismissed 72 NY2d 914), and that any error in restricting comment in this regard was harmless. Finally, we discern no improvident exercise of discretion in the trial court’s rulings sustaining certain objections to questions asked by plaintiffs counsel on cross-examination (see, People v Sandoval, 34 NY2d 371, 374; Murphy v Estate of Vece, 173 AD2d 445). Concur — Rosenberger, J. P., Nardelli, Wallach and Rubin, JJ.

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Bluebook (online)

255 A.D.2d 271, 680 N.Y.S.2d 503, 1998 N.Y. App. Div. LEXIS 12736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/padilla-v-city-of-new-york-nyappdiv-1998.

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