LaGrasta v. Ettayyim

In an action to recover damages for personal injuries, the plaintiff appeals from (1) a judgment of the Supreme Court, Kings County (Martin, J.), entered August 27, 2002, which, upon a jury verdict, is in favor of the defendants Reid Ettayyim and Hasham Ettayyim and against him, and (2) a judgment of the same court entered July 16, 2003, which, upon the same jury verdict, is in favor of the defendants Barry Sussman and Marie Sussman and against him. Ordered that the judgments are affirmed, with one bill of costs. Contrary to the plaintiffs contention, the Supreme Court correctly declined to give the jury a missing witness charge (see PJI3d 1:75 [2004 Supp]) with respect to two of the defendants’ doctors who examined the plaintiff after his surgery. The plaintiff failed to establish that the missing witnesses were available, were under the defendants’ sole control, and would have been expected to provide material noncumulative testimony favorable to the defense (see People v Savinon, 100 NY2d 192, 197 [2003]; People v Gonzalez, 68 NY2d 424, 427 [1986]; Buttice v Dyer, 1 AD3d 552 [2003]; People v O’Hara, 253 AD2d 560 [1998]). Moreover, the Supreme Court properly rejected the plaintiffs request to charge that the defendants were liable for any subsequent aggravation of the injury due to medical malpractice (see PJI3d 2:305 [2004 Supp]), since there was no factual basis for such a charge (see Lebron v St. Vincent’s Hosp. & Med. Ctr., 261 AD2d 246 [1999]). The plaintiffs remaining contentions are without merit. Ritter, J.P., Goldstein, Townes and Crane, JJ., concur.