Ordered that the judgment is affirmed, with costs.
On November 18, 2003 the appellant and the plaintiff Juan Rodriguez were passengers in a vehicle operated by the plaintiff Leo F Taveras, the appellant's brother, that collided with a vehicle owned and operated by the defendant at the intersection of North Jerusalem Road and Oakfield Avenue in North Bellmore. The defendant's wife was a passenger in his vehicle at the time of the accident.
After a trial on the issue of liability, the jury returned a verdict in favor of the defendant.
Contrary to the appellant's contention, he was not prejudiced by the testimony of the defendant's wife. Although she had not previously been identified as a witness, her testimony was cumulative and did not contradict the defendant's testimony ( cf. Smith v Saviolis, 136 AD2d 621).
The Supreme Court did not err in granting the defendant's request for a missing-witness charge for Leo F. Taveras. A party seeking a missing-witness charge must "promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call him to testify" ( People v Gonzalez, 68 NY2d 424, 427). As the party opposing the missing-witness charge, the appellant failed to demonstrate that Leo F. Taveras was "unavailable, not under [his] control, or that [his] testimony would be cumulative" ( Adkins v Queens Van-Plan, 293 AD2d 503, 504). Leo F Taveras was the operator of the vehicle in which the appellant was a passenger and he is also the appellant's brother. Thus, it is clear that Leo F Taveras is favorably disposed to the appellant and under his control ( see People v Marsalis, 22 AD3d 866, 868-869). The appellant failed to demonstrate that Leo F Taveras remained ill after his hospital release or was otherwise unavailable ( compare People v Turner, 294 AD2d 192).
The court did not improvidently exercise its discretion in denying the appellant's request for a mistrial. Upon a review of the record, it cannot be said that the denial of the plaintiffs application for a mistrial resulted in a "`substantial possibility of injustice'" ( Cohn v Meyers, 125 AD2d 524, 527, quoting Halstead v Sanky, 48 Misc 2d 586, 588; see Frankson v Philip Morris Inc., 31 AD3d 372, 373).
The appellant's remaining contention is unpreserved for appellate review ( see Kay Found, v S F Towing Serv. of Staten Is., Inc., 31 AD3d 499, 501).