DeANGELIS v. NEW YORK UNIVERSITY MEDICAL CENTER (2005)

Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered May 28, 2003, upon a jury verdict, in defendants' favor, unanimously affirmed, without costs.

 The missing witness charge respecting plaintiff's treating cardiologist, Dr. Zullo, was proper.   In opposing the charge, plaintiff failed to show that Dr. Zullo's testimony would be cumulative, or that he was either unavailable or not under her control (see Dayanim v. Unis, 171 A.D.2d 579, 567 N.Y.S.2d 673 [1991] ).   Nor did the court err in precluding plaintiff from utilizing at trial a letter written by Dr. Zullo some five years subsequent to the alleged malpractice.   The relevance of the diagnostic opinion in the letter to plaintiff's condition at the time of the complained-of malpractice was hardly clear and the opinion was impermissibly speculative, particularly in the absence of testimony from Dr. Zullo.

Plaintiff was not deprived of a fair trial in any other respect.   The court's questions, although numerous, were addressed to both plaintiff's and defendants' witnesses and were appropriately interposed to clarify the testimony and expedite the proceedings in this complex medical malpractice case;  they did not interfere with the presentation of evidence or cross-examination of witnesses.   The trial record does not disclose that the court was biased or prejudiced against plaintiff (see Lewis v. Port Auth. of New York & New Jersey, 8 A.D.3d 205, 779 N.Y.S.2d 479 [2004];  Delcor Lab., Inc. v. Cosmair, Inc., 263 A.D.2d 402, 693 N.Y.S.2d 579 [1999], lv. denied 94 N.Y.2d 761, 706 N.Y.S.2d 81, 727 N.E.2d 578 [2000];  see also Carson v. New York City Health & Hosp. Corp., 178 A.D.2d 265, 578 N.Y.S.2d 134 [1991] ).

We have considered plaintiff's remaining arguments and find them unavailing.