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DEVITO v. FELICIANO

No. 195

22 N.Y.3d 159 (2013)

1 N.E.3d 791

978 N.Y.S.2d 717

2013 NY Slip Op 7828

THERESA DEVITO, Appellant, v. DENNIS FELICIANO et al., Respondents.

Court of Appeals of New York.

Decided November 26, 2013.

Attorney(s) appearing for the Case

Pollack, Pollack , Isaac & De Cicco, New York City ( Brian J. Isaac of counsel), and Philip J. Rizzuto, P.C., Carle Place ( Philip J. Rizzuto of counsel), for appellant.

Gottlieb, Siegel & Schwartz, LLP, Bronx ( Michael H. Gottlieb and Melissa Paquette of counsel), for respondents.

McGaw, Alventosa & Zajac, Jericho ( Andrew Zajac , Dawn C. DeSimone , Rona L. Platt and Brenda T. Fitzpatrick of counsel), and James M. Begley for Defense Association of New York, Inc., amicus curiae.

Chief Judge LIPPMAN and Judges GRAFFEO, READ, SMITH and RIVERA concur; Judge ABDUS-SALAAM taking no part.

OPINION OF THE COURT

PIGOTT, J.

We hold that when a missing witness charge is requested in a civil case, the uncalled witness's testimony may properly be considered cumulative only when it is cumulative of testimony or other evidence favoring the party controlling the witness. It may not be considered cumulative simply because it would repeat or be consistent with an opposing party's evidence.

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