Supreme Court, Kings County

Decided on May 18, 2026

Index No. 506576/2020

Aaron D. Maslow, J.

[*1]

Background

In this action, plaintiff Vladimir Bellegarde alleges personal injuries resulting from a motor vehicle accident which took place on October 18, 2019. At the liability phase of the trial today, he testified that he was operating his car, while driving northbound on Rogers Avenue in Brooklyn. After passing the intersection with St. John's Place, he moved from the center lane to the left lane. Plaintiff Bellegarde maintains that close to or at the intersection with Sterling Place, a truck owned by defendant Premier Construction, Inc. and operated by defendant Mangal Singh tried to make a left turn onto Sterling Place from the center lane and, in the process, struck plaintiff Bellegarde's car's passenger side. A video of the accident, taken from plaintiff Bellegarde's dashcam, was introduced into evidence and shown to the jury.

Defendants elicited from plaintiff Bellegarde on cross-examination that his dashcam video recording depicts defendant Singh's left turn signal blinking. Defendants argue that this gave notice to plaintiff Bellegarde of defendant Singh's intention to move into the left lane — not [*2]that he necessarily was going to turn left immediately. Defendant Singh did not appear at the trial.

During the charge conference today for this liability phase of the trial, the parties were in dispute over whether the jury should be instructed with a missing witness charge concerning defendant Singh's not testifying. Plaintiff Bellegarde argued that since Singh did not testify, the jury should be instructed that they may draw an adverse inference. Defendants argued that Singh might not have testified favorably to defendants and, that since a video of the accident from plaintiff Bellegarde's car showed what transpired, Singh's testimony would be cumulative. The Court has not located any authority on the issue of whether a missing party's testimony would be cumulative of a video recording shown to the jury, thus vitiating the need for a missing party witness charge.

Discussion

PJI 1:75.1 provides: "Generally, a party is not required to call any particular person as a witness. However, where a party does not testify, an inference may be drawn against that party. In this case, (AB, CD) did not testify. Therefore, you may, although you are not required to, conclude that the testimony of (AB, CD) would not support (AB's, CD's) position on the question(s) of [identify issue(s)] [add if opposing party has offered evidence on the issue(s) and would not contradict the evidence offered by (AB, CD) on (that, those) question(s)]. Additionally, you may, although you are not required to, draw the strongest inference(s) against (AB, CD) on (that, those) question(s) to the extent you deem appropriate."

"A missing witness 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 preconditions for this charge, applicable to both criminal and civil trials, may be set out as follows: (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" (Alli v Full Serv. Auto Repair, LLC, 127 AD3d 1003, 1004 [2d Dept 2015], quoting DeVito v Feliciano, 22 NY3d 159, 165-166 [2013] [internal quotation marks omitted]).

"The missing witness rule is related to the broader principle that '[a] trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding' " (Matter of Adam K, 110 AD3d 168, 178 [2d Dept 2013], quoting Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73, 79 [1995]). This "broader principle is generally applied in cases where the missing witness is a party" (Matter of Adam K, 110 AD3d at 178). Therefore, the preconditions for use of the missing witness charge do not apply when the witness is a party (see 1A NY PJI3d 1:75, Comment, Failure of a Party to Testify, at 138 [2026]).

It was stated in Dowling v Hastings (211 NY 199 [1914]): "The matter in dispute was peculiarly within the knowledge of the plaintiff. Why did he not go on the witness stand and [*3]explain the transaction? As was said by Andrews, J., in Wylde v. Northern R. R. Co. of N. J. (53 NY 156) where one party to an action knowing the truth of a matter in controversy and having the evidence in his possession, omits to speak, every inference warranted by the evidence offered will be indulged in against him. That rule applies with full force in this case."

It is irrelevant what the testimony of a missing party might be and whom it would be favorable for. "The failure of respondent to testify does not permit the trier of the fact to speculate about what his testimony might have been nor does it require an adverse inference. It does, however, allow the trier of fact to draw the strongest inference against him that the opposing evidence in the record permits" (Matter of Commissioner of Social Servs. v Philip De G, 59 NY2d 137, 141 [1983] [citation omitted]).

In connection with a trial in an action alleging personal injuries proximately resulting from the negligence of a defendant in a motor vehicle accident, "Contrary to the defendants' contention, the Supreme Court properly granted the plaintiffs' request for a missing witness charge with respect to the defendant Julio A. Torro, the driver of the vehicle that allegedly struck the van of the injured plaintiff Joe S. Brown. Torro, who at all relevant times was represented by counsel, and who had previously given deposition testimony, inexplicably failed to appear at the trial to testify. A jury may, but is not required to, draw the strongest inference that the opposing evidence permits against a party who fails to testify at trial (see Crowder v Wells & Wells Equip., Inc., 11 AD3d 360, 361 [2004]; Farrell v Labarbera, 181 AD2d 715, 716 [1992]; see also Noce v Kaufman, 2 NY2d 347, 353 [1957])." (Brown v City of New York, 50 AD3d 937, 938 [2d Dept 2008].)

That there was testimony already put forward by the party seeking the missing witness charge is not an excuse for the adverse party not calling a witness who would be expected to testify (see DeVito v Feliciano, 22 NY3d 159).

The Court in Alli v Full Serv. Auto Repair, LLC (127 AD3d at 1004) held: "[W]e note that the plaintiff's use of Chinsamy's deposition testimony does not constitute a waiver of her right to request a missing witness charge."

Further concerning a missing witness charge against a party who does not testify, it was held: "Under the circumstances of this case, the trial court also should have given a missing witness charge with respect to the defendant's failure to testify. On the plaintiff's direct case, he read into the record the deposition testimony of the defendant concerning the defendant's prior knowledge of certain conditions on the pool deck. The defendant offered no proof. Contrary to the trial court's holding, the plaintiff's use of the deposition to make out a prima facie case, did not constitute a waiver of his right to request a missing witness charge. It is well settled that where one party to an action, knowing the truth of a matter in controversy and having the evidence in his possession, omits to speak, every inference against him warranted by the evidence may be considered. . . ." (Farrell v Labarbera, 181 AD2d 715, 716 [2d Dept 1992] [citations omitted].)

While defendants argue that defendant Singh's testimony would have been cumulative of [*4]what was viewable in the video recording, the Court holds that the same principle applies to playing video recordings as it does to reading the missing witness' deposition testimony. In other words, it does not vitiate a missing witness charge. When it comes to a party it is irrelevant that in-court testimony of a non-appearing party may be duplicative of information provided by other means, such as the adverse party's testimony, reading deposition, testimony, or showing a video. The prerequisites for a missing witness charge — other than not appearing — are not binding when it is a party who did not testify. The circumstances in this trial, therefore, still call for the jury to be instructed with the charge when, as is the situation here, a video recording of the accident was displayed for the jury. Defendant Singh could have explained to the jury his intentions when signaling, whether he looked in his mirror before the impact, or whether he turned his head to see whether anyone was in the adjacent lane. He did not provide such information to the jury as he failed to appear at the trial.

Conclusion

Accordingly, the Court determines that instructing the jury with PJI 1:75.1 (missing party witness charge) with regard to defendant Mangal Singh not testifying in the liability phase of this trial is appropriate.

Hon. Aaron D. Maslow

Justice of the Supreme Court of the State of New York