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DUKES v. ROTEM

191 A.D.2d 35 (1993)

Annest Y. Dukes, Individually and as Administratrix of The Estate of Nathaniel Dukes, Deceased, Respondent, v. Edna Rotem et al., Appellants

Appellate Division of the Supreme Court of the State of New York, First Department.

June 22, 1993

Attorney(s) appearing for the Case

Merril Schapiro Biscone of counsel, Uniondale (Evan H. Krinick with her on the brief; Rivkin, Radler & Kremer, attorneys), for appellants.

Sally Weinraub, P. C., of counsel, White Plains (Annette Z. Kolman, New York City, attorney), for respondents.

MILONAS, J. P., ELLERIN and ASCH, JJ., concur with KASSAL, J.; RUBIN, J., dissents in part in a separate opinion.

KASSAL, J.

We are called upon to decide whether a missing witness charge is appropriate when plaintiff's counsel in a personal injury case fails to call the treating physician who treated plaintiff most recently, for the greatest period of time, and who changed her treatment.

This is a personal injury action in which plaintiff Annest Dukes claims that she suffers from permanent, chronic back pain as a...

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