Use of Deposition Testimony Does Not Waive Missing Witness Charge (NY)

In Alli v Full Serv. Auto Repair, LLC, New York’s Appellate Division reviewed the applicability of a missing witness jury charge in a trip and fall case venued in Queens County Supreme Court. The case involved the plaintiff’s claim that she fell due to icy conditions on the sidewalk in front of an auto repair shop in Queens, NY.

At trial, the plaintiff presented the jury with photographs of the sidewalk taken the evening of her accident and took the stand and testified regarding her accident. Also, the plaintiff read the deposition transcript of the owner of the repair shop concerning his knowledge of the icy condition and efforts to clean the sidewalk.

The defendants did not offer any evidence, including the testimony of the owner. At the conclusion of the trial the plaintiff’s attorney requested the Court issue a missing witness charge because of the defense did not call the owner to testify. A missing witness jury 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 Supreme Court did not present this charge to the jury, and after the jury returned a defense verdict, the plaintiff appealed.

The Appellate Division reversed the Supreme Court’s finding and held that the unexplained failure of the owner to appear and testify at trial warranted a missing witness charge. The Appellate Division decision reiterated the four elements needed for a missing witness charge to be given: (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.

The Court held that the use of deposition testimony does not constitute a waiver of the right to request a missing witness charge, and directed a new trial.

Thanks to George Pappas for his contribution to this post and please write to Mike Bono for more information.