Appellate Division of the Supreme Court of New York, 2002

Redmond v. Chin

Redmond v. Chin
Appellate Division of the Supreme Court of New York · Decided August 26, 2002
297 A.D.2d 368; 746 N.Y.2d 612; 746 N.Y.S.2d 612; 2002 N.Y. App. Div. LEXIS 8127
Redmond v. Chin

Opinion of the Court

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 *369does 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.

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