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Austin v. Carstens-Elliot

39 A.D.3d 443 Court N.Y. App. Div. Decision date 2007-04-03 English

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p. 443
Charles Austin et al., Appellants, v Lynnea Carstens-Elliot et al., Respondents.
[831 NYS2d 734]

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.

p. 444
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.

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