Clements v. Lindsey

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Dutchess County (Jiudice, J.), entered March 15, 1996, which, upon a jury verdict in favor of the defendants and against them, dismissed the complaint. Ordered that the judgment is affirmed, with costs. The Supreme Court properly declined to issue a "missing witness” charge (see, PJI 1:75) notwithstanding the defendants’ failure to present the testimony of a doctor who examined the plaintiff driver on behalf of the defense. The testimony of the uncalled witness would have been "merely cumulative” (Wilson v Bodian, 130 AD2d 221, 234; Chandler v Flynn, 111 AD2d 300, 301; see also, DeFreese v Grau, 192 AD2d 1019; Levande v Dines, 153 AD2d 671). The plaintiffs’ contention that the jury verdict was inconsistent is not preserved for appellate review (see, Grassi v Kamalian, 226 AD2d 344; Barry v Manglass, 55 NY2d 803; Strauss v 558 Huber, 161 AD2d 629). In any event, the jury verdict finding that the defendant driver was negligent but that his negligence was not a proximate cause of the accident was not inconsistent with the evidence elicited at trial (see, Gaston v Viclo Realty Co., 215 AD2d 174; Faustin v Aquatero, 201 AD2d 453; Barone v City of Mount Vernon, 170 AD2d 557). In addition, the verdict was not against the weight of the evidence (see, Cohen v Hallmark Cards, 45 NY2d 493; Nicastro v Park, 113 AD2d 129; see also, Pomaro v McKeon, 228 AD2d 572; Moskowitz v Israel, 209 AD2d 676; Patti v Fenimore, 181 AD2d 869; CPLR 4404). Rosenblatt, J. P., Thompson, Altman and Luciano, JJ., concur.