Alli v Full Serv. Auto Repair, LLC, 2015 NY Slip Op 03308 (2d Dept. 2015)
The missing witness charge
“The plaintiff requested that the Supreme Court deliver a missing witness charge because of the failure of the defense to call Chinsamy as a witness. This request was refused and no such charge was given. The jury returned a verdict in favor of the defendants.
A missing witness charge “instructs a jury that it may draw an adverse inference based on the failure of a party to call a witness who would normally be expected to support that party’s version of events. . . The preconditions for this charge, applicable to both criminal and civil trials, may be set out as follows: (1) the witness’s knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the control’ of the party against whom the charge is sought, so that the witness would be expected to testify in that party’s favor; and (4) the witness is available to that party” (DeVito v Feliciano, 22 NY3d 159, 165-166 [internal citations omitted]).
Under the circumstances, and considering Chinsamy’s unexplained failure to appear and testify at trial, the Supreme Court should have granted the plaintiff’s request for a missing witness charge (see Katz v Gangemi, 60 AD3d 819; Brown v City of New York, 50 AD3d 937; Crowder v Wells & Wells Equip., Inc., 11 AD3d 360; Farrell v Labarbera, 181 AD2d 715). In this regard, we note that the plaintiff’s use of Chinsamy’s deposition testimony does not constitute a waiver of her right to request a missing witness charge (see Webber v K-Mart Corp., 266 AD2d 534; Farrell v Labarbera, 181 AD2d 715). In light of the evidence presented, the error cannot be deemed harmless (see Crowder v Wells & Wells Equip., Inc., 11 AD3d at 362)”
