Scaglione v. Victory Memorial Hospital

205 A.D.2d 520, 613 N.Y.S.2d 213

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Dowd, J.), entered October 7, 1992, which, upon a jury verdict, is in favor of the defendant and against them.

Ordered that the judgment is affirmed, with costs.

A party who seeks an adverse inference charge against an opponent who fails to produce a document must make a prima facie showing that the document in question actually exists and that it is under the opposing party’s control (see, Fares v Fox, 198 AD2d 396; Eagle Pet Serv. Co. v Pacific Empl. Ins. Co., 175 AD2d 471). The party requesting the charge must also show that the adverse party has no reasonable explanation for not producing the document (PJI 1:77). We find that, in light of the defendant’s reasonable excuse that they no longer had six-year-old maintenance records, the trial court properly denied the plaintiffs’ request for a missing document charge.

Further, the trial court did not improvidently exercise its discretion in refusing to allow the plaintiffs’ attorney to testify for the purpose of impeaching the credibility of the plaintiff Anna Lucia Scaglione’s hospital roommate, a nonparty witness, on a collateral matter (see, Halloran v Virginia Chems., 41 NY2d 386; Pipitone v Zweig, 186 AD2d 73).

We have considered the plaintiffs’ remaining contentions and find that they are either without merit or unpreserved for appellate review. Rosenblatt, J. P., Miller, Lawrence and Florio, JJ., concur.