MUCCI v. LOMBROWSKI (2002)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Nassau County (Palmieri, J.), dated May 25, 2001, which, upon a jury verdict in favor of the defendants and against them, dismissed the complaint.

ORDERED that the judgment is affirmed, with costs.

 The Supreme Court properly exercised its discretion in granting the defendants' request for a missing witness charge with respect to the injured plaintiff's family physician, who treated her immediately following the accident at issue and then referred her to a specialist.   Contrary to the plaintiffs' contention, the family physician's testimony would not have been cumulative of the specialist's testimony.   The sole defense at trial was that the injured plaintiff had preexisting injuries, and the family physician was in a unique position to testify regarding the injured plaintiff's complaints and symptoms before and after the accident (see Placakis v. City of New York, 289 A.D.2d 551, 736 N.Y.S.2d 379).

 The Supreme Court also properly declined to charge the jury concerning serious injury under the “permanent consequential limitation” or “significant limitation” categories with regard to the injured plaintiff's lumbar spine.   The plaintiffs failed to present evidence that quantified or objectively measured the alleged limitation (see Cizek v. Aberbach, 277 A.D.2d 416, 715 N.Y.S.2d 909;  McHaffie v. Antieri, 190 A.D.2d 780, 593 N.Y.S.2d 844).