Appellate Division of the Supreme Court of New York, 1997

Clements v. Lindsey

Appellate Division of the Supreme Court of New York · Decided March 31, 1997

237 A.D.2d 557; 655 N.Y.S.2d 987; 1997 N.Y. App. Div. LEXIS 3036

Cases that cite this one

6 later published cases cite this decision.

Spiegel v. Spiegel (Appellate Division of the Supreme Court of New York 2009)
Austin v. Carstens-Elliot (Appellate Division of the Supreme Court of New York 2007)
Uher v. Toys "R" Us (Appellate Division of the Supreme Court of New York 2002)
Grunewald v. Alexander Avenue Kosher Restaurant Corp. (Appellate Division of the Supreme Court of New York 2002)
Saidoff v. Cummings (Appellate Division of the Supreme Court of New York 2000)
Feneck v. First Union Real Estate Equity & Mortgage Investments (Appellate Division of the Supreme Court of New York 1999)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Dutchess County (Jiudice, J.), entered March 15, 1996, which, upon a jury verdict in favor of the defendants and against them, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly declined to issue a "missing witness” charge (see, PJI 1:75) notwithstanding the defendants’ failure to present the testimony of a doctor who examined the plaintiff driver on behalf of the defense. The testimony of the uncalled witness would have been "merely cumulative” (Wilson v Bodian, 130 AD2d 221, 234; Chandler v Flynn, 111 AD2d 300, 301; see also, DeFreese v Grau, 192 AD2d 1019; Levande v Dines, 153 AD2d 671).

The plaintiffs’ contention that the jury verdict was inconsistent is not preserved for appellate review (see, Grassi v Kamalian, 226 AD2d 344; Barry v Manglass, 55 NY2d 803; Strauss v *558Huber, 161 AD2d 629). In any event, the jury verdict finding that the defendant driver was negligent but that his negligence was not a proximate cause of the accident was not inconsistent with the evidence elicited at trial (see, Gaston v Viclo Realty Co., 215 AD2d 174; Faustin v Aquatero, 201 AD2d 453; Barone v City of Mount Vernon, 170 AD2d 557). In addition, the verdict was not against the weight of the evidence (see, Cohen v Hallmark Cards, 45 NY2d 493; Nicastro v Park, 113 AD2d 129; see also, Pomaro v McKeon, 228 AD2d 572; Moskowitz v Israel, 209 AD2d 676; Patti v Fenimore, 181 AD2d 869; CPLR 4404). Rosenblatt, J. P., Thompson, Altman and Luciano, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.