Manessis v. Command Bus Co.

—In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Held, J.), entered May 22, 1997, which, upon jury verdicts finding the defendants 100% at fault in the happening of the accident but awarding no damages, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

On April 15, 1992, the plaintiff was injured when her automobile was hit from behind by a bus owned by the defendant Command Bus Company and operated by the defendant Richard Frascati. As a result, her car was pushed into the path of an oncoming car and struck again. The driver and owner of the second car were not parties to this action. Although the jury found the defendants 100% at fault in the happening of the accident, after a trial on damages the jury found that the plaintiff had not suffered a serious injury under any of the three definitions of that term contained in Insurance Law § 5102 (d) and, therefore, awarded no damages.

The jury verdict was not against the weight of the evidence (see, Lolik v Big V Supermarkets, 86 NY2d 744 ). Further, the trial court did not err in giving a missing-witness charge as to three of the plaintiff’s doctors because the plaintiff failed to meet her burden of showing that the witnesses were unavailable, not within her control, or that their testimony would have been cumulative (see, Dukes v Rotem, 191 AD2d 35 ; Moore v Johnson, 147 AD2d 621 ). Copertino, J. P., Thompson, Sullivan and Friedmann, JJ., concur.