Brown v. Village Mobil Service Station, Inc.

Judgment, Supreme Court, New York County (Harold Galloway, J.), entered on March 28, 1990, which, after a jury trial on liability and a stipulation on damages, awarded plaintiff Peggy Brown damages in the amount of $250,000, and awarded plaintiff Gilberto MatosMorales damages in the amount of $100,000, unanimously affirmed, with costs. The defendant service station performed an inspection of the brakes of a State-owned automobile. The following day, as the vehicle was being driven by plaintiff Matos, with plaintiff [159] Brown and another person as passengers, the brakes "locked”, causing the car to skid and spin into a guardrail. Contrary to the defendant’s argument on appeal, the plaintiffs were not obliged to prove a precise link between specific flaws in the inspection and the resulting accident, or to eliminate with certainty any but the most remote possibilities inconsistent with a finding of negligence (see, Archie v Todd Shipyards Corp., 65 AD2d 699). The plaintiffs’ expert testified that, under the facts, there was no likely cause of the accident other than a negligently performed brake inspection. Contrary testimony from the defendant’s expert raised only a question for the jury (Rivera v New York City Tr. Auth., 161 AD2d 132). A missing witness charge was properly given as to the defendant’s employees, none of whom testified. The defendant failed to rebut the plaintiffs’ prima facie showing that the garage employees would have information on a material issue, could be expected to provide noncumulative testimony favoring defendant, and would, in a broad sense, be in the defendant’s control (Cornell Pharmacy v Guzzo, 135 AD2d 1000, 1001, lv dismissed 71 NY2d 928). The court’s charge was otherwise proper. The instructions given by the court in their totality adequately set forth the correct legal standards (Schmeider v Montefiore Hosp. & Med. Center, 122 AD2d 735, lv denied 69 NY2d 605). Concur—Ross, J. P., Rosenberger, Asch, Kassal and Wallach, JJ.