CPLR § 4017 and a missing witness

CPLR § 4017 Objections

Lerner v New York City Tr. Auth., 2011 NY Slip Op 02731 (App. Div. 1st, 2011)

Defendant's argument that the trial court erred in not permitting its counsel to cross-examine plaintiff's medical expert on an injury that was not pleaded in the bills of particulars is not preserved for appellate review (CPLR 4017). In any event, the trial court providently exercised its discretion in declining to permit defense counsel's line of questioning on the unpleaded injury especially since it precluded plaintiff's counsel from the same line of questioning on direct (see Salm v Moses, 13 NY3d 816, 817 [2009]).

The trial court did not err in giving the missing witness charge to the jury based on [*2]defendant's failure to call its medical expert. Plaintiff established her entitlement to the charge and defendant failed to show that its expert's testimony would have been cumulative to the testimony of plaintiff's expert (see O'Brien v Barretta, 1 AD3d 330 [2003]).

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