Rojas v. Greyhound Lines, Inc.

254 A.D.2d 188, 679 N.Y.S.2d 41, 1998 N.Y. App. Div. LEXIS 11158

Opinion

Judgment, Supreme Court, New York County (Walter Relihan, Jr., J.), entered October 9, 1997, which, after a jury trial, awarded plaintiff a total of $141,365.21, unanimously affirmed, without costs.

Defendant’s argument that the court improperly allowed plaintiffs expert to describe a report by a nonwitness physician was waived when defendant’s trial counsel expressly consented to the use of the report by the witness. In any event, the limited use of the report was not inappropriate under the circumstances, even though the report itself had not been received in evidence (cf., O’Shea v Sarro, 106 AD2d 435, 437). Nor did the trial court err in denying defendant’s request for a missing witness charge. Given the use of the above-mentioned report in the testimony of plaintiffs expert, the testimony of the doctor who had written the report would have been cumulative (see, Jellema v 66 W. 84th St. Owners Corp., 248 AD2d 117). We note in this connection that both sides’ experts fully described the report (see, Diorio v Scala, 183 AD2d 1065, 1067). Concur— Nardelli, J. P., Rubin, Tom and Mazzarelli, JJ.