Austin v Carstens-Elliot

Austin v Carstens-Elliot 2007 NY Slip Op 02865 [39 AD3d 443] April 3, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 6, 2007

Charles Austin et al., Appellants,
v
Lynnea Carstens-Elliot et al., Respondents.

—[*1] Dankner & Milstein, P.C. (Alexander J. Wulwick, New York, N.Y., of counsel), for appellants.

Westermann, Hamilton, Sheehy, Aydelott & Keenan, LLP, White Plains, N.Y. (Christopher P. Keenan and Tom Kullen of counsel), for respondents.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from a judgment of the Supreme Court, Rockland County (Sherwood, J.), entered December 12, 2005, which, upon a jury verdict, is in favor of the defendants and against them dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiffs' request for a missing witness charge. Even if the plaintiffs satisfied their initial burden of establishing a prima facie case of medical malpractice, testimony sought from that witness would have been cumulative (see Gardiner v Wertheimer, 256 AD2d 381 [1998]; Clements v Lindsey, 237 AD2d 557 [1997]; Klombers v Lefkowitz, 131 AD2d 815, 816 [1987]).

The plaintiffs' remaining contention is unpreserved for appellate review, as it was not the subject of a timely objection at trial (see CPLR 4017, 5501[a] [3]; Saratoga Spa & Bath v Beeche Sys. Corp., 230 AD2d 326, 332-333 [1997]; Pieniewski v Benbenek, 56 AD2d 710 [1977]; Farhart v Matuljak, 283 App Div 977, 978 [1954]). Miller, J.P., Mastro, Ritter and Balkin, JJ., concur.