Pappanikolaou v. New York University Dental Center

—In a dental malpractice action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Hutcherson, J.), dated May 4, 1992, which, upon a jury verdict, is in favor of the defendant dismissing the complaint. Ordered that the judgment is affirmed, with costs. The plaintiffs contend that the trial court erred by denying their request for a missing witness charge with respect to a dentist employed by the defendant. A missing witness charge should be given where a witness, who has not been called, is under a party’s control and is in a position to give substantial, not merely cumulative evidence (see, Zeeck v Melina Taxi Co., 177 AD2d 692; Kupfer v Dalton, 169 AD2d 819). Here, the uncalled witness was a faculty supervisor who made a note in the injured plaintiff’s records. The witness was not the injured plaintiff’s treating dentist and there was no showing that the testimony would have constituted material evidence (see, Kushner v Mollin, 181 AD2d 866). Accordingly, the trial court properly refused to give a missing witness charge. The plaintiffs further contend that certain comments made by defense counsel during summation were prejudicial and deprived them of a fair trial. This claim is unpreserved for appellate review as the plaintiffs failed to object to any of the alleged comments (see, Savarese v City of New York Hous. Auth., 172 AD2d 506). We have reviewed the plaintiffs’ remaining contentions and find them to be without merit. O’Brien, J. P., Joy, Friedmann and Krausman, JJ., concur.