| Hanlon v Campisi |
| 2008 NY Slip Op 02110 [49 AD3d 603] |
| March 11, 2008 |
| Appellate Division, Second Department |
| Evelyn V. Hanlon, Appellant, v C.M. Campisi et al.,Respondents. |
—[*1] Richard T. Lau (Rivkin Radler, LLP, Uniondale, N.Y. [Evan H. Krinick, Cheryl F. Korman,Harris J. Zakarin, and Melissa M. Murphy] of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment ofthe Supreme Court, Nassau County (Parga, J.), dated October 25, 2006, which, upon thedefendants' concession of liability, and upon a jury verdict finding that she did not sustain aserious injury within the meaning of Insurance Law § 5104 (d), is in favor of thedefendants and against her, dismissing the complaint.
Ordered that the judgment is reversed on the law and the facts, and a new damages trial isgranted, including the issue of serious injury, with costs to abide the event.
The plaintiff commenced the present action, alleging that the rotator cuff tear which shesustained was proximately caused by the negligence of the defendants in causing the subjectmotor vehicle accident. During the course of discovery, the defendants produced an affirmedmedical report prepared by Dr. David Benatar, who examined the plaintiff on behalf of thedefendants and concluded that the subject motor vehicle accident was "the causative factor for[the plaintiff's] right shoulder complaints."
At trial, the defendants' expert radiologist, their only witness, testified that the plaintiff'srotator cuff tear was degenerative in nature. After the expert concluded her testimony, thedefendants rested their case. Thereafter, at an off-the-record precharge conference, the plaintiff's[*2]attorney requested a missing witness charge with regard toBenatar, whom the defendants did not call to testify at trial. The Supreme Court denied theapplication.
Under the circumstances of this case, the plaintiff's request for a missing witness charge waspromptly made (see Dukes v Rotem, 191 AD2d 35 [1993]; Trainor v Oasis RollerWorld, 151 AD2d 323 [1989]; see also Follett v Thompson, 171 AD2d 777 [1991])and therefore was not untimely. Turning to the merits, "[w]hen a doctor who examines an injuredplaintiff on the defendant's behalf does not testify at trial, an inference generally arises that thetestimony of such witness would be unfavorable to the defendant. The defendant may defeat thisinference by demonstrating that the testimony would be merely cumulative, the witness wasunavailable or not under the defendant's control, or the witness would address matters not indispute" (Brooks v Judlau Contr.,Inc., 39 AD3d 447, 449 [2007]). Here, the defendants failed to defeat the inference.Therefore, the plaintiff is entitled to a new trial on the issue of damages, including the issue ofserious injury.
The parties' remaining contentions are without merit. Rivera, J.P., Skelos, Santucci andLeventhal, JJ., concur.