Redmond v. Chin

297 A.D.2d 368, 746 N.Y.2d 612, 746 N.Y.S.2d 612, 2002 N.Y. App. Div. LEXIS 8127

Opinion

The defendants contend that the trial court erred in giving a missing witness charge with respect to the physicians who examined the plaintiff on their behalf. We disagree. “When a doctor who examines the plaintiff on the defendant’s behalf does not testify at trial, an inference generally arises that the testimony of such witness would be unfavorable to the defendant unless he [or she] demonstrates that the testimony would be merely cumulative, the witness was unavailable or not under his [or her] control, or that the witness would address matters not in dispute” (Brueckner v Simpson, 206 AD2d 448; see Arroyo v City of New York, 171 AD2d 541, 544; Levande v Dines, 153 AD2d 671, 672). Since the defendants failed to make this required showing, the trial court properly granted the plaintiffs request for a missing witness charge (see Placakis v City of New York, 289 AD2d 551, 552-553; Iovine v City of New York, 286 AD2d 372, 373; Staltare v D&B Distribs., 281 AD2d 469, 470; Jordan v Donat, 255 AD2d 242, 243; Ghize v Kinney Drugs, 177 AD2d 784, 785).

The defendants’ remaining contentions do not require reversal. Santucci, J.P., S. Miller, Krausman and Goldstein, JJ., concur.