Devito v. Feliciano

Plaintiff was injured when a van operated by Dennis Feliciano and owned by Paragon Cable Manhattan rear-ended the car in which Plaintiff was a passenger. Plaintiff filed this suit against Feliciano and Paragon Cable (collectively, Defendants), alleging that Defendants' negligence caused her to suffer nasal and vertebra fractures. A jury returned a verdict in Defendants' favor. Plaintiff appealed, contending that the trial court erred in failing to give a "missing witness" charge, which 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. As a precondition for the charge, the witness is expected to give noncumulative testimony. The Appellate Division affirmed Supreme Court's dismissal of Plaintiff's complaint. The Court of Appeals reversed, holding (1) when a missing witness charge is requested in a civil case, the uncalled witness's testimony may be considered cumulative only when it is cumulative of testimony or other evidence favoring the party controlling the witness; and (2) Supreme Court erred in denying Plaintiff's request for a missing witness charge, and the error was not harmless. View "Devito v. Feliciano" on Justia Law