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JOE S. BROWN et al., Respondents, v. CITY OF NEW YORK et al., Appellants.

Ordered that the judgment is affirmed, with costs.

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; Farrell v Labarbera, 181 AD2d 715, 716; see also Noce v Kaufman, 2 NY2d 347, 353).

Contrary to the defendants' contention, the verdict was not against the weight of the evidence ( see Lolik v Big V Supermarkets, 86 NY2d 744, 746), and the jury's damages awards did not deviate materially from what would be reasonable compensation ( see CPLR 5501 [c]).

The defendants' remaining contentions are without merit.

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BROWN v. NEW YORK
(Apr 22, 2008)