MORTON v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (2004)

Supreme Court, Appellate Division, First Department, New York.

William MORTON, Plaintiff-Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., Defendants-Respondents.

Decided: June 17, 2004

BUCKLEY, P.J., NARDELLI, ANDRIAS, WILLIAMS, GONZALEZ, JJ.

Gregory Antollino, New York, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Deborah A. Brenner of counsel), for municipal respondent. Hodgson Russ, LLP, New York (Lawrence R. Bailey, Jr. of counsel), for Kinney Systems, Inc., respondent.

Judgment, Supreme Court, New York County (Leland DeGrasse, J.), entered April 29, 2003, which, upon jury verdict, dismissed the complaint, unanimously affirmed, without costs.

Plaintiff argues that the trial court erred in charging the jury that it could draw adverse inferences against plaintiff based on his failure to call two of his treating physicians and to introduce MRIs performed shortly after the accident. However, because the missing physicians and MRIs pertained only to damages, and because the jury, which found defendants negligent but that such negligence was not a substantial factor in causing plaintiff's injuries, never reached the issue of damages, the error, if any, was harmless and may not serve as a ground for a new trial (Gilbert v. Luvin, 286 A.D.2d 600, 730 N.Y.S.2d 85).

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