No witness speaks louder for the defense than the plaintiff who fails to call a key witness at trial. In order to warrant the coveted missing witness charge, (PJI 1:75), the defense must lay the groundwork during the plaintiff's case in chief. The Court and your adversary must be put on notice as early as practicable, of your intention to seek the missing witness charge. Failure to satisfy the four elements set forth below is fatal to the request for a missing witness charge.

At the outset it must be stated that the rule is well established that counsel may comment on the failure of an adverse party to call a witness who is within that party's control under the presumption that the testimony would have been unfavorable to that party. (Brotherton v. Barber Asphalt Paving Company, 117 A.D. 791, 102 N.Y.S. 1089 [2d Dept. 1907];Seligson, Morris & Neuburger v. Fairbanks Whitney Corporation, 22 A.D.2d 625, 257 N.Y.S. 2d 706 [1st Dept. 1965].) 

However, although such comment is permitted during counsel's summation, in order to warrant a charge to the jury to that effect certain other requirements must be met. 

Case law has established four predicate requirements to mandate the court to instruct the jury on the adverse inference that may be drawn from a party's failure to call a witness: 

(1) the witness must be under the supervision or control of the party who failed to call him or her (Savage v. Thomas J. Shea Funeral Home, Inc., 212 A.D.2d 875, 622 N.Y.S. 2d 363[3d Dept 1995]);

(2) the witness must possess information on a material issue (Jackson v. County of Sullivan, 232 A.D.2d 954, 648 N.Y.S. 2d 808 [3d Dept. 1996]);

(3) the testimony would not be cumulative (Gardiner v. Wertheimer, 256 A.D.2d 381, 681 N.Y.S. 2d 565 [2d Dept. 1998]); and 

(4) there is no reasonable explanation for not calling the witness (Dayanim v. Unis, 171 A.D.2d 579, 567 N.Y.S.2d 673 [1st Dept. 1991]).

Unless these four requirements have been met, the court should not proffer a missing witness charge, but the party may still comment upon it during summation. (Padilla v. City of New York, 255 A.D.2d 271, 680 N.Y.S. 2d 503 [1st Dept. 1998]). 

No inference may be drawn from a party's failure to call a witness unless it can be evidenced that the witness is within the control of the party against whom the inference is sought to be drawn. 

(Hayden v. New York Rys. Co., 233 N.Y. 34, 134 N.E. 826 [1922]; Hershkowitz v. Saint Michel, 143 A.D.2d 809, 533 N.Y.S. 2d 344 [2d Dept 1988].) 

Although this concept of control has historically encompassed employees modern courts have defined control in a very broad sense so as to include persons under the influence of the party (see Safdie v. City of New York, 138 A.D.2d 361, 525 N.Y.S. 2d 650 [2d Dept. 1988]), as well as those persons who bear a special or personal relationship to the party (La Lima v. Fath, 36 A.D.2d 923, 320 N.Y.S. 2d 882 [1st Dept. 1971]). The party's doctor, in an action involving the party's physical condition, has been held to fall within the category of persons within the party's control. (Brotherton v. Barber Asphalt Paving Company, supra.)

 Read the decision here.   

Most Business owners were disappointed when they pulled out their Insurance Policy in the hope of finding coverage for loss of business caused by power outages in the wake of Hurricane Sandy.   

A typical policy provision reads as follows:
"Business Income---the suspension of your 'operations' during the 'period of restoration' must be caused by direct physical loss of or physical damage to property at the "scheduled premises"..."

In other words, in order for the loss to be covered, the cause of the business interruption must be a direct physical loss of or physical damage to property at the "scheduled premises." The scheduled premises is your office and the office building. The cause of your loss of power in your premises was caused by the general failure of the electrical system caused by damage to equipment that was outside of the "scheduled premises," and therefore is not covered under the policy. In order for there to be coverage, the tidal water would have to actually enter and directly damage your building's electrical system, as opposed to a general area electrical outage.

Litigation will follow this storm of the century, however, the rule in New York is that:

"(a) court, no matter how well intentional, cannot create policy terms by implication or rewrite an insurance contract. Nor should a court disregard the provisions of an insurance contract which are clear and unequivocal or accord a policy a strained construction merely because that interpretation is possible. An insurer is entitled to have its contract of insurance enforced in accordance with its provisions and without a construction contrary to its express terms" Bretton v Mutual of Omaha Ins. Co., 110 AD2d 46, 49, 492 NYS2d 760 [1985].

In Buxbaum v AETNA Life & Cas. Co., 103 Cal App 4th 434, 126 Cal Rptr 2d 682 [Cal Ct App], review denied 2003 Cal LEXIS 2251 [2002] the plaintiff law firm suffered water damage to its offices, but since attorneys working in the office continued to bill hours on the day the flood damage was discovered, there was no suspension of operations to trigger the business interruption loss provisions of the policy. The Buxbaum court succinctly stated that:

"[i]n order for business income coverage to apply, the Policy requires that there be a 'necessary suspension' of operations. This term is not defined in the policy ... . [] Webster's Third New International Dictionary defines 'suspension' as 'the act of suspending or the state or period of being suspended, interrupted, or abrogated.' 'Suspended' is defined as 'temporarily debarred, inactive, inoperative.' These definitions comport with what appears to be the common understanding of the term 'suspension', that is, that it connotes a temporary, but complete, cessation of activity. Thus, if one were to apply the plain, ordinary meaning to the use of the phrase 'necessary suspension' within the policy, in order for a claim to fall within the coverage provision it would require that any direct physical loss of or damage to property result in the cessation of [the insured's] operations."