Miller v. Kimber

— Judgment unanimously affirmed without costs. Memorandum: Supreme Court did not err by giving a missing witness charge. A missing witness charge is appropriate when a party fails to call a witness who is within his control and who would be in a position to give substantial, noncumulative testimony (Mashley v Kerr, 47 NY2d 892; Getlin v St. Vincent’s Hosp. & Med. Center, 117 AD2d 707, 709; Chandler v Flynn, 111 AD2d 300, appeal dismissed 67 NY2d 647). The fact that portions of the missing witness’s records were received into evidence did not render his testimony cumulative (see, Safdie v City…