Opinion
5256
February 3, 2005.
Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered May 28, 2003, upon a jury verdict in defendants' favor, unanimously affirmed, without costs.
Before: Saxe, J.P., Friedman, Marlow, Sullivan and Williams, JJ., concur.
The missing witness charge respecting plaintiff's treating cardiologist, Dr. Zullo, was proper. In opposing the charge, plaintiff failed to show that Dr. Zullo's testimony would be cumulative, or that he was either unavailable or not under her control ( see Dayanim v. Unis, 171 AD2d 579). Nor did the court err in precluding plaintiff from utilizing at trial a letter written by Dr. Zullo some five years subsequent to the alleged malpractice. The relevance of the diagnostic opinion in the letter to plaintiff's condition at the time of the complained-of malpractice was hardly clear and the opinion was impermissibly speculative, particularly in the absence of testimony from Dr. Zullo.
Plaintiff was not deprived of a fair trial in any other respect. The court's questions, although numerous, were addressed to both plaintiff's and defendants' witnesses and were appropriately interposed to clarify the testimony and expedite the proceedings in this complex medical malpractice case; they did not interfere with the presentation of evidence or cross-examination of witnesses. The trial record does not disclose that the court was biased or prejudiced against plaintiff ( see Lewis v. Port Auth. of N.Y. N.J., 8 AD3d 205; Delcor Labs., Inc. v. Cosmair, Inc., 263 AD2d 402, lv denied 94 NY2d 761; see also Carson v. New York City Health Hosps. Corp., 178 AD2d 265).
We have considered plaintiff's remaining arguments and find them unavailing.