ROJAS v. “John Doe”, etc., Defendant-Respondent.

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Supreme Court, Appellate Division, First Department, New York.

Amado ROJAS, Plaintiff-Respondent, v. GREYHOUND LINES, INC., Defendant-Appellant, “John Doe”, etc., Defendant-Respondent.

Decided: October 22, 1998

Before NARDELLI, J.P., and RUBIN, TOM and MAZZARELLI, JJ. Gregory V. Bitterman, for Plaintiff-Respondent. Raymond D. McElfish, for Defendant-Appellant and Defendant-Respondent.

Judgment, Supreme Court, New York County (Walter Relihan, Jr. J.), entered October 9, 1997, which, after a jury trial, awarded plaintiff a total of $141,365.21, unanimously affirmed, without costs.

 Defendant's argument that the court improperly allowed plaintiff's expert to describe a report by a nonwitness physician was waived when defendant's trial counsel expressly consented to the use of the report by the witness.   In any event, the limited use of the report was not inappropriate under the circumstances, even though the report itself had not been received in evidence (cf., O'Shea v. Sarro, 106 A.D.2d 435, 437, 482 N.Y.S.2d 529).   Nor did the trial court err in denying defendant's request for a missing witness charge.   Given the use of the above-mentioned report in the testimony of plaintiff's expert, the testimony of the doctor who had written the report would have been cumulative (see, Jellema v. 66 West 84th St. Owners Corp., 248 A.D.2d 117, 669 N.Y.S.2d 550).   We note in this connection that both sides' experts fully described the report (see, Diorio v. Scala, 183 A.D.2d 1065, 1067, 583 N.Y.S.2d 654).