Miller v. Kimber

— Judgment unanimously affirmed without costs. Memorandum: Supreme Court did not err by giving a missing witness charge. A missing witness charge is appropriate when a party fails to call a witness who is within his control and who would be in a position to give substantial, noncumulative testimony (Mashley v Kerr, 47 NY2d 892 ; Getlin v St. Vincent’s Hosp. & Med. Center, 117 AD2d 707 , 709; Chandler v Flynn, 111 AD2d 300 , appeal dismissed 67 NY2d 647 ). The fact that portions of the missing witness’s records were received into evidence did not render his testimony cumulative (see, Safdie v City of New York, 138 AD2d 361 , 362). Additionally, the record indicates that the witness’s medical opinion differed from the other medical testimony offered at trial.

The x-rays should have been admitted into evidence (see, Stein v Lebowitz-Pine View Hotel, 111 AD2d 572 , 574, lv denied 65 NY2d 611 ; CPLR 2306, 4518 [a]). However, the exclusion of the x-rays was harmless error because the x-ray reports, which explained the x-rays, were admitted.

The court’s charge on "serious injury” (Insurance Law § 5102 [d]) was proper in all respects. Finally, plaintiff failed to preserve for review his contention that a DOT document was improperly excluded from evidence. (Appeal from Judgment of Supreme Court, Monroe County, Provenzano, J. — Negligence.) Present — Boomer, J. P., Pine, Lawton, Davis and Doerr, JJ.