| Taveras v Martin |
| 2008 NY Slip Op 06701 [54 AD3d 667] |
| September 2, 2008 |
| Appellate Division, Second Department |
| Leo F. Taveras et al., Plaintiffs, and Domingo Taveras,Appellant, v Paul R. Martin, Jr., Respondent. |
—[*1] Rivkin Radler LLP, Uniondale (Evan H. Krinick, Cheryl F. Korman, and Merril S. Bisconeof counsel), for respondent. Brian J. McGovern, LLC, New York (Alison M. K. Lee of counsel), for plaintiff Leo F.Taveras.
In an action to recover damages for personal injuries, the plaintiff Domingo Taveras appealsfrom a judgment of the Supreme Court, Nassau County (Brandveen, J.), dated July 10, 2006,which, upon a jury verdict, is in favor of the defendant and against him, in effect, dismissing thecomplaint insofar as asserted by him.
Ordered that the judgment is affirmed, with costs.
On November 18, 2003 the appellant and the plaintiff Juan Rodriguez were passengers in avehicle operated by the plaintiff Leo F. Taveras, the appellant's brother, that collided with avehicle owned and operated by the defendant at the intersection of North Jerusalem Road andOakfield Avenue in North Bellmore. The defendant's wife was a passenger in his vehicle at thetime of the accident.
After a trial on the issue of liability, the jury returned a verdict in favor of the defendant.
Contrary to the appellant's contention, he was not prejudiced by the testimony of thedefendant's wife. Although she had not previously been identified as a witness, her testimony wascumulative and did not contradict the defendant's testimony (cf. Smith v Saviolis, 136AD2d 621 [1988]).[*2]
The Supreme Court did not err in granting the defendant'srequest for a missing-witness charge for Leo F. Taveras. A party seeking a missing-witnesscharge must "promptly notify the court that there is an uncalled witness believed to beknowledgeable about a material issue pending in the case, that such witness can be expected totestify favorably to the opposing party and that such party has failed to call him to testify"(People v Gonzalez, 68 NY2d 424, 427 [1986]). As the party opposing themissing-witness charge, the appellant failed to demonstrate that Leo F. Taveras was "unavailable,not under [his] control, or that [his] testimony would be cumulative" (Adkins v QueensVan-Plan, 293 AD2d 503, 504 [2002]). Leo F. Taveras was the operator of the vehicle inwhich the appellant was a passenger and he is also the appellant's brother. Thus, it is clear thatLeo F. Taveras is favorably disposed to the appellant and under his control (see People v Marsalis, 22 AD3d866, 868-869 [2005]). The appellant failed to demonstrate that Leo F. Taveras remained illafter his hospital release or was otherwise unavailable (compare People v Turner, 294AD2d 192 [2002]).
The court did not improvidently exercise its discretion in denying the appellant's request for amistrial. Upon a review of the record, it cannot be said that the denial of the plaintiff's applicationfor a mistrial resulted in a " 'substantial possibility of injustice' " (Cohn v Meyers, 125AD2d 524, 527 [1986], quoting Halstead v Sanky, 48 Misc 2d 586, 588 [1965]; seeFrankson v Philip Morris Inc., 31 AD3d 372, 373 [2006]).
The appellant's remaining contention is unpreserved for appellate review (see Kay Found. v S & F Towing Serv. ofStaten Is., Inc., 31 AD3d 499, 501 [2006]). Spolzino, J.P., Santucci, Eng and Leventhal,JJ., concur.