LaGRASTA v. ETTAYYIM (2004)

In an action to recover damages for personal injuries, the plaintiff appeals from (1) a judgment of the Supreme Court, Kings County (Martin, J.), entered August 27, 2002, which, upon a jury verdict, is in favor of the defendants Reid Ettayyim and Hasham Ettayyim and against him, and (2) a judgment of the same court entered July 16, 2003, which, upon the same jury verdict, is in favor of the defendants Barry Sussman and Marie Sussman and against him.

ORDERED that the judgments are affirmed, with one bill of costs.

Contrary to the plaintiff's contention, the Supreme Court correctly declined to give the jury a missing witness charge (see PJI3d 1:75 [2004] ) with respect to two of the defendants' doctors who examined the plaintiff after his surgery.   The plaintiff failed to establish that the missing witnesses were available, were under the defendants' sole control, and would have been expected to provide material noncumulative testimony favorable to the defense (see People v. Savinon, 100 N.Y.2d 192, 197, 761 N.Y.S.2d 144, 791 N.E.2d 401;  People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583;  Buttice v. Dyer, 1 A.D.3d 552, 767 N.Y.S.2d 784;  People v. O'Hara, 253 A.D.2d 560, 677 N.Y.S.2d 373).   Moreover, the Supreme Court properly rejected the plaintiff's request to charge that the defendants were liable for any subsequent aggravation of the injury due to medical malpractice (see PJI3d 2:305 [2004] ), since there was no factual basis for such a charge (see Lebron v. St. Vincent's Hosp. and Med. Ctr., 261 A.D.2d 246, 690 N.Y.S.2d 228).

The plaintiff's remaining contentions are without merit.