Iorizzo v. Dyker Emergency Physicians, P. C.

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Bellard, J.), dated August 2, 1999, which, upon a jury verdict on the issue of liability, is in favor of the defendants Kasthuri Issack and Frank Lacqua and against them. Ordered that the judgment is affirmed, with one bill of costs. The injured plaintiff’s insurance claim form was admitted into evidence without objection. Consequently, the question of whether there was a proper foundation for its admission is unpreserved for appellate review. The trial court’s issuance of a missing witness charge with respect to the injured plaintiff’s treating physician was a provident exercise of discretion (see, Dukes v Rotem, 191 AD2d 35; Kupfer v Dalton, 169 AD2d 819; cf, Kasman v Flushing Hosp. & Med. Ctr., 224 AD2d 590; Coningsby v Marabell, 214 AD2d 949). Ritter, J. P., S. Miller, Goldstein and Smith, JJ., concur.