Appellate Division of the Supreme Court of New York, 2007

Austin v. Carstens-Elliot

Appellate Division of the Supreme Court of New York · Decided April 3, 2007

39 A.D.3d 443; 831 N.Y.S.2d 734

Cases that cite this one

2 later published cases cite this decision.

Spiegel v. Spiegel (Appellate Division of the Supreme Court of New York 2009)
Kaygreen Realty Co. v. IG Second Generation Partners, L.P. (Appellate Division of the Supreme Court of New York 2009)

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 medical malpractice, etc., the plaintiffs appeal from a judgment of the Supreme Court, Rockland County (Sherwood, J.), entered December 12, 2005, which, upon a jury verdict, is in favor of the defendants and against them dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiffs’ request for a missing witness charge. *444Even if the plaintiffs satisfied, their initial burden of establishing a prima facie case of medical malpractice, testimony sought from that witness would have been cumulative (see Gardiner v Wertheimer, 256 AD2d 381 [1998]; Clements v Lindsey, 237 AD2d 557 [1997]; Klombers v Lefkowitz, 131 AD2d 815, 816 [1987]).

The plaintiffs’ remaining contention is unpreserved for appellate review, as it was not the subject of a timely objection at trial (see CPLR 4017, 5501[a] [3]; Saratoga Spa & Bath v Beeche Sys. Corp., 230 AD2d 326, 332-333 [1997]; Pieniewski v Benbenek, 56 AD2d 710 [1977]; Farhart v Matuljak, 283 App Div 977, 978 [1954]). Miller, J.P., Mastro, Ritter and Balkin, JJ., concur.

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