Austin v. Knowlton

—Judgment unanimously reversed in the exercise of discretion without costs and new trial granted. Memorandum: Supreme Court granted defendant’s request for a missing witness charge with respect to three of plaintiff’s treating or examining physicians. Plaintiff objected to the charge on the ground that the physicians were not in her control. On appeal, plaintiff contends with respect to the missing witness charge that defendant failed promptly to raise the issue, the testimony of the physicians would have been cumulative, and she had no control over them. Although only the control issue is preserved for our review (see, CPLR 5501 [a] [3]; 4110-b), we agree that the testimony of the physicians would have been cumulative and thus that the court erred in giving the missing witness charge (see, Prince, Richardson on Evidence § 3-140 (Farrell 11th ed]). Because of the critical significance of the issue of serious injury, the error was fundamental and requires a new trial in the exercise of discretion (see, DiGrazia v Castronova, 48 AD2d 249, 252; cf., Pagnella v Action for Better Community, 57 AD2d 1076). We have considered plaintiffs remaining contentions and conclude that they are without merit. (Appeal from Judgment of Supreme Court, Cattaraugus County, Francis, J.— Negligence.) Present—Denman, P. J., Lawton, Callahan, Balio and Boehm, JJ.