From Casetext: Smarter Legal Research

Cohen v. Lukacs

Appellate Division of the Supreme Court of New York, Second Department
May 26, 2000
272 A.D.2d 501 (N.Y. App. Div. 2000)

Opinion

Submitted April 7, 2000.

May 26, 2000.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (LaTorella, J.), dated May 5, 1999, which, upon a jury verdict, is in favor of the defendants and against them dismissing the complaint.

Jonathan Silver, Kew Gardens, N.Y., for appellants.

Shapiro, Beilly, Rosenberg, Aronowitz, Levy Fox, LLP, New York, N.Y. (Roy J. Karlin of counsel), for respondents.

Before: WILLIAM D. FRIEDMANN, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.


DECISION ORDER

ORDERED that the judgment is affirmed, with costs.

The plaintiff Elizabette Cohen was injured as the result of a two-car collision involving the car she was operating and a car operated by the defendant Nicole Lukacs. Each driver, traveling along a route perpendicular to the other, claimed that when she entered the intersection where the collision occurred, the traffic light regulating the intersection was in her favor. At trial, the defendants presented the testimony of Nicole Lukacs and one of the two passengers in her car. The plaintiffs requested that a missing witness charge be given to the jury with respect to the second passenger, but the court denied the application. The jury found that the defendants were not negligent in the happening of the accident.

A party is entitled to a missing witness charge when an uncalled witness knowledgeable about a material issue would naturally be expected to provide noncumulative testimony favorable to the party who has not called him or her and is available to that party (see, People v. Gonzalez, 68 N.Y.2d 424, 427; Jackson v. County of Sullivan, 232 A.D.2d 954, 955). Here, the uncalled witness was unavailable as a matter of law since, at the time of trial, she was residing in another state and was beyond the jurisdiction of the court (see, Dukes v. Rotem, 191 A.D.2d 35, 38-39; Zeeck v. Melina Taxi Co., 177 A.D.2d 692, 694). In any event, the testimony of the uncalled witness would have been cumulative since the defendant driver and the passenger who was sitting in the front passenger seat both testified at trial (see, Lipp v. Saks, 129 A.D.2d 681, 683-684). Accordingly, the court did not err in denying the plaintiffs' application for a missing witness charge.

The plaintiffs' remaining contentions are without merit.

FRIEDMANN, J.P., KRAUSMAN, LUCIANO and SCHMIDT, JJ., concur.


Summaries of

Cohen v. Lukacs

Appellate Division of the Supreme Court of New York, Second Department
May 26, 2000
272 A.D.2d 501 (N.Y. App. Div. 2000)
Case details for

Cohen v. Lukacs

Case Details

Full title:ELIZABETTE COHEN, ET AL., APPELLANTS, v. ANTON LUKACS, ET AL., RESPONDENTS

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 26, 2000

Citations

272 A.D.2d 501 (N.Y. App. Div. 2000)
708 N.Y.S.2d 133

Citing Cases

Simmons v. Stewart (In re Estate of Lewis)

a result of the delay, objectants deprived petitioner of "any opportunity to account for [the attorney's]…

Pasquaretto v. Cohen

Here, however, the parties stipulated that the plaintiff sustained an injury of unspecified severity to his…