PADILLA v. CITY OF NEW YORK (1998)

Judgment, Supreme Court, New York County (Robert Lippmann, J.), entered April 17, 1998, upon a jury verdict, in defendant's favor, unanimously affirmed, without costs.

The trial court did not err by denying plaintiff's request for a missing witness charge where testimony by the Emergency Medical Service technician who refused to testify would have been cumulative of the testimony of his partner on the material issue of where plaintiff was found (see, e.g., Dowling v. 257 Assocs., 235 A.D.2d 293, 652 N.Y.S.2d 736;  Lipp v. Saks, 129 A.D.2d 681, 683, 514 N.Y.S.2d 443), and where defense counsel adequately explained the witness's lack of availability (see, People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583).   Moreover, we note that plaintiff was allowed to mention the witness's absence in summation (see, De Vaul v. Carvigo, 138 A.D.2d 669, 526 N.Y.S.2d 483, lv. denied 72 N.Y.2d 806, 532 N.Y.S.2d 847, 529 N.E.2d 177 and appeal dismissed 72 N.Y.2d 914, 532 N.Y.S.2d 848, 529 N.E.2d 178), and that any error in restricting comment in this regard was harmless.   Finally, we discern no improvident exercise of discretion in the trial court's rulings sustaining certain objections to questions asked by plaintiff's counsel on cross-examination (see, People v. Sandoval, 34 N.Y.2d 371, 374, 357 N.Y.S.2d 849, 314 N.E.2d 413;  Murphy v. Estate of Vece, 173 A.D.2d 445, 570 N.Y.S.2d 71).

MEMORANDUM DECISION.