Patricia Caesar, Plaintiff-Respondent, v. Randolph Trafton, et al., Defendants-Appellants. (1998)

Judgment, Supreme Court, Bronx County (Bertram Katz, J.), entered September 15, 1997, which, upon a jury verdict in favor of plaintiffs, inter alia, apportioned liability 45% against defendants-appellants, and awarded plaintiff Patricia Ceasar $175,000 for future pain and suffering, and bringing up for review an order of the same court and Justice, entered March 17, 1997, which, inter alia, denied defendants-appellants' motion to set aside the verdict as excessive and against the weight of the evidence, unanimously affirmed, with costs.   Appeal from said order, unanimously dismissed, without costs, as subsumed within the appeal from the judgment.

 The missing witness instruction was warranted since defendants did not demonstrate that the physicians who had examined plaintiffs on defendants' behalf were unavailable, or that their testimony would be cumulative (see, People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583).   In addition, since the record supports the trial court's implicit determination that this case involved “serious injury” as a matter of law, the court's failure to charge as to the no-fault threshold was not erroneous.   Finally, in light of the evidence indicating that the 31-year-old plaintiff would suffer substantial pain from her back injuries, which injuries include one herniated and four bulging discs, the award to her of $175,000 for future pain and suffering did not deviate from reasonable compensation under the circumstances (see, Skow v. Jones Lang & Wooton Corp., 240 A.D.2d 194, 657 N.Y.S.2d 709).

MEMORANDUM DECISION.