Pagan v. Ramirez ( 1981 )

In a negligence action to recover damages for personal injuries, defendants appeal from a judgment of the Supreme Court, Queens County, entered January 28, 1980, which is in favor of plaintiff in the principal amount of $70,000, upon a jury verdict. Judgment affirmed, with costs. The defense presented no evidence to contradict the testimony offered by plaintiff’s expert physician and it was not demonstrated that plaintiff’s former physician was within his control or was willing to provide testimony on plaintiff’s behalf. It was thus proper for the Trial Justice to refuse defendants’ request for a “missing witness” charge based on plaintiff’s failure to call his former doctor to testify (see Noce v. Kaufman, 2 NY2d 347; Oswald v Heaney, 70 AD2d 653). Furthermore, the amount of damages awarded by the jury (as diminished pursuant to the stipulation apportioning liability) was not excessive. Hopkins, J. P., Rabin, Gulotta and Thompson, JJ., concur.