MARINARO v. RADOLINSKI (2005)

Plaintiffs commenced this negligence action seeking damages for injuries sustained by Francis Marinaro (plaintiff) in a motor vehicle accident.   Defendant stipulated to the issues of liability and serious injury and, at the trial conducted on the issue of damages, both plaintiffs testified and the videotaped testimony of plaintiff's treating physician was played for the jury.   Defendant presented no testimony.   We reject the sole contention of defendant on appeal that Supreme Court erred in giving a missing witness charge with respect to her failure to call two physicians who examined plaintiff on defendant's behalf.   Although defendant asserts in support thereof that the testimony of those two physicians would have been merely cumulative to the testimony of plaintiff's treating physician, “one person's testimony properly may be considered cumulative of another's only when both individuals are testifying in favor of the same party” (Leahy v. Allen, 221 A.D.2d 88, 92, 644 N.Y.S.2d 388).   Here, defendant did not call any witnesses to testify, and thus defendant cannot establish that the testimony of the two physicians at issue would have been cumulative to the testimony of any witness who testified for defendant (cf. Edbauer v. Board of Educ. of N. Tonawanda City School Dist. [Appeal No. 3], 286 A.D.2d 999, 1000, 731 N.Y.S.2d 309;  Duncan v. Mount St. Mary's Hosp. of Niagara Falls [Appeal No. 3], 272 A.D.2d 862, 863, 707 N.Y.S.2d 564, lv. denied 95 N.Y.2d 760, 714 N.Y.S.2d 710, 737 N.E.2d 952).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: