Francis Marinaro v Barbara Radolinski

Marinaro v Radolinski 2005 NY Slip Op 08479 [23 AD3d 1079] November 10, 2005 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

Francis Marinaro et al., Respondents, v Barbara Radolinski, as Executor of Eugene Zarazinski, Deceased, Appellant. (Appeal No. 2.)

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Appeal from a judgment of the Supreme Court, Erie County (Peter J. Notaro, J.), entered September 2, 2004. The judgment, entered after a jury verdict, directed that plaintiffs recover from defendant the sum of $472,526.46, and future payments together with interest.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this negligence action seeking damages for injuries sustained by Francis Marinaro (plaintiff) in a motor vehicle accident. Defendant stipulated to the issues of liability and serious injury and, at the trial conducted on the issue of damages, both plaintiffs testified and the videotaped testimony of plaintiff's treating physician was played for the jury. Defendant presented no testimony. We reject the sole contention of defendant on appeal that Supreme Court erred in giving a missing witness charge with respect to her failure to call two physicians who examined plaintiff on defendant's behalf. Although defendant asserts in support thereof that the testimony of those two physicians would have been merely cumulative to the testimony of plaintiff's treating physician, "one person's testimony properly may be considered cumulative of another's only when both individuals are testifying in favor of the same party" (Leahy v Allen, 221 AD2d 88, 92 [1996]). Here, defendant did not call any witnesses to testify, and thus defendant cannot establish that the testimony of the two physicians at issue would have been cumulative to the testimony of any witness who testified for defendant (cf. Edbauer v Board of Educ. of N. Tonawanda City School Dist. [appeal No. 3], 286 AD2d 999, 1000 [2001]; Duncan v Mount St. Mary's Hosp. of Niagara Falls [appeal No. 3], 272 AD2d 862, 863 [2000], lv denied 95 NY2d 760 [2000]). Present—Scudder, J.P., Martoche, Pine, Lawton and Hayes, JJ.