Mashley v. Kerr — 47 N.Y.2d 892

Majority

p. 892

Bonita B. Mashley, Appellant, v John Kerr et al., Respondents, et al., Defendant.

Argued May 4, 1979;

decided June 14, 1979

p. 893

APPEARANCES OF COUNSEL

Ernest Abdella and George Abdella for appellant.

Richard T. Horigan for respondents.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

The trial record testimony does not reveal why plaintiff failed to produce certain medical witnesses. In this circumstance, the court’s charge relative to what inferences may be drawn from such failure was proper (see PJI 1:75). Likewise, the court’s ruling to receive in evidence certain exhibits consisting of accident reports made by the investigating officer may not be disturbed in view of a failure to make timely objection to their receipt, or to take proper exception thereto, other than with respect to the diagram and then on the

p. 894

ground of lack of personal knowledge on the part of the witness, an objection which was promptly obviated and accordingly properly overruled. Thus, in the absence of any preserved claimed errors, the order should be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed.