Wilkie v. New York City Health & Hospitals Corp.

274 A.D.2d 474, 711 N.Y.S.2d 29, 2000 N.Y. App. Div. LEXIS 8175

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 17, 2000
• Status: Published

Opinion

—In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Patterson, J.), dated June 1, 1999, which, upon a jury verdict, is in favor of the defendant and against them.

Ordered that the judgment is affirmed, with costs.

The plaintiffs contend that an adverse inference charge was warranted, as the defendant did not produce two CAT scans. A party seeking an adverse inference charge against an opponent which, as here, has failed to produce a document, must make a prima facie showing that the document in question actually exists, that it is under the opposing party’s control, and that there is no reasonable explanation for failing to produce it (see, Cidieufort v New York City Health & Hosps. Corp., 250 AD2d 720; Scaglione v Victory Mem. Hosp., 205 AD2d 520). The plaintiffs did not establish that the two CAT scans were within the defendant’s control. Thus, they failed to make the prima facie showing necessary to warrant an adverse inference charge.

A missing witness charge was not warranted for the ophthalmologist who examined the infant plaintiff. The testimony the ophthalmologist might be expected to give was already covered by the testimony of an expert witness who testified at trial and therefore would have been merely cumulative (see, Cidieufort v New York City Health & Hosps. Corp., supra, at 721; Devaney v Catholic Med. Ctr., 231 AD2d 550; Kane v Linsky, 156 AD2d 333).

The plaintiffs’ remaining contentions are either unpreserved for appellate review or without merit. Joy, J. P., S. Miller, Luciano and Smith, JJ., concur.