Klombers v. Lefkowitz
| Decision Date | 29 June 1987 |
| Citation | 517 N.Y.S.2d 179,131 A.D.2d 815 |
| Parties | Mitchell KLOMBERS, et al., Respondents, v. Sol LEFKOWITZ, d/b/a Lefkowitz Summer Homes, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Sol Lefkowitz, P.C., New York City (Paul F. McAloon, of counsel), for appellant.
Melvyn S. Jacknowitz, New York City (Charles F. McGuire, on the brief), for respondents.
Before THOMPSON, J.P., and WEINSTEIN, EIBER and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the defendant appeals from (1) a judgment of the Supreme Court, Queens County (Hyman, J.), dated May 23, 1986, which is in favor of the plaintiffs and against him in the sum of $45,504.09, and (2) so much of an order of the same court, dated October 9, 1986, as denied that branch of his motion which was to set aside the jury verdict in the plaintiffs' favor.
ORDERED that the judgment is affirmed, and the order is affirmed insofar as appealed from, with one bill of costs.
The defendant's contention that the trial court erred in denying his motion for a continuance is without merit. The granting or refusing of a continuance is within the sound discretion of the trial court, and in absence of an abuse of discretion will be upheld on appellate review (see, Michaels v. Dalimonte, 121 A.D.2d 370, 502 N.Y.S.2d 801). Under the circumstances of this case, there is no basis to disturb the trial court's exercise of discretion.
The defendant's claim that the trial court erred in excluding from evidence the door involved in the incident is likewise without merit. The admission or exclusion of real or demonstrative evidence also rests largely within the sound discretion of the trial court (see, Wesler v. Kassl, 109 A.D.2d 740, 485 N.Y.S.2d 844). Based on the facts before us, we find that the trial court did not abuse its discretion here.
Contrary to the defendant's assertions, the defendant was not prejudiced by any perceived noncompliance with the medical report exchange rules. Therefore, the court did not err in permitting the plaintiffs' doctor to testify (see, e.g., Markey v. Eiseman, 114 A.D.2d 887, 495 N.Y.S.2d 61). Moreover, the court did not err in refusing to give a missing witness charge with respect to the plaintiff Mitchell Klombers' former physician since it was not demonstrated that he was within the plaintiffs' control (see, Pagan v. Ramirez, 80 A.D.2d 848, 444 N.Y.S.2d 472). Nor was a missing witness charge warranted as...
To continue reading
Request your trial
-
In the Matter of Vilair Fonvil v. Denexandre
...563, 817 N.Y.S.2d 143; Herbert v. Edwards Super Food Stores–Finast Supermarkets, 253 A.D.2d 789, 677 N.Y.S.2d 617; Klombers v. Lefkowitz, 131 A.D.2d 815, 816, 517 N.Y.S.2d 179; Michaels v. Dalimonte, 121 A.D.2d 370, 502 N.Y.S.2d 801). Considering, among other things, the petitioner's lack o......
-
Gallagher's Stud, Inc. v. Fishman
...aware when he took over the case that the matter had been certified as ready for trial for over three years (see, Klombers v. Lefkowitz, 131 A.D.2d 815, 816, 517 N.Y.S.2d 179, lv. denied 70 N.Y.2d 614, 524 N.Y.S.2d 676, 519 N.E.2d 622). Finally, the evidentiary challenges raised by defendan......
-
Hayles v. Malachi
...testimony to the defendant's case, the trial court did not abuse its discretion in denying a continuance (see, Klombers v. Lefkowitz, 131 A.D.2d 815, 517 N.Y.S.2d 179, lv. denied 70 N.Y.2d 614, 524 N.Y.S.2d 676, 519 N.E.2d MOLLEN, P.J., and EIBER, KOOPER and SPATT, JJ., concur. ...
-
Klombers v. Lefkowitz
...622 Klombers (Mitchell) v. Lefkowitz (Sol), d/b/a Lefkowitz Summer Homes NO. 1202 COURT OF APPEALS OF NEW YORK JAN 07, 1988 131 A.D.2d 815, 517 N.Y.S.2d 179 MOTION FOR LEAVE TO Denied. ...
-
Real evidence
...The admission or exclusion of real evidence rests largely within the sound discretion of the trial court. Klombers v. Lefkowitz , 131 A.D.2d 815, 517 N.Y.S.2d 179 (2d Dept. 1987); Norfleet v. New York City Transit Authority , 124 A.D.2d 715, 508 N.Y.S.2d 468 (2d Dept. 1986). This discretion......
-
Summation
...of the witness. People v. Gonzales , 68 N.Y.2d 424, 509 N.Y.S.2d 796 (1986). Lack of control over the witness. Klombers v. Lefkowitz , 131 A.D.2d 815, 517 N.Y.S.2d 179 (2d Dept. 1987). That the witness’s testimony would be irrelevant or cumulative. People v. Gonzales , 68 N.Y.2d 424, 50......
-
Summation
...of the witness. People v. Gonzales , 68 N.Y.2d 424, 509 N.Y.S.2d 796 (1986). Lack of control over the witness. Klombers v. Lefkowitz , 131 A.D.2d 815, 517 N.Y.S.2d 179 (2d Dept. 1987). hat the witness’ testimony would be irrelevant or cumulative. People v. Gonzales , 68 N.Y.2d 424, 509 ......
-
Summation
...of the witness. People v. Gonzales , 68 N.Y.2d 424, 509 N.Y.S.2d 796 (1986). Lack of control over the witness. Klombers v. Lefkowitz , 131 A.D.2d 815, 517 N.Y.S.2d 179 (2d Dept. 1987). hat the witness’ testimony would be irrelevant or cumulative. People v. Gonzales , 68 N.Y.2d 424, 509 ......