        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1462
CA 12-00961
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND MARTOCHE, JJ.


MIDSTATE MUTUAL INSURANCE COMPANY, AS SUBROGEE
OF DOREEN L. TOPOREK AND MICHAEL I. RUI,
PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CAMP ROAD TRANSMISSIONS, INC., DEFENDANT,
AND LAKESHORE TIRE & AUTO, INC.,
DEFENDANT-RESPONDENT.
(ACTION NO. 1.)
----------------------------------------------
DOREEN L. TOPOREK AND MICHAEL I. RUI,
PLAINTIFFS-APPELLANTS,

                    V

CAMP ROAD TRANSMISSIONS, INC., DEFENDANT,
AND LAKESHORE TIRE & AUTO, INC.,
DEFENDANT-RESPONDENT.
(ACTION NO. 2.)


GALLO & IACOVANGELO, LLP, ROCHESTER (AMANDA R. INSALACO OF COUNSEL),
FOR PLAINTIFF-APPELLANT MIDSTATE MUTUAL INSURANCE COMPANY, AS SUBROGEE
OF DOREEN L. TOPOREK AND MICHAEL I. RUI.

GARVEY & GARVEY, BUFFALO (MATTHEW J. GARVEY OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS DOREEN L. TOPOREK AND MICHAEL I. RUI.

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (SEAN W.
COSTELLO OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeals from a judgment and order (one paper) of the Supreme
Court, Erie County (Diane Y. Devlin, J.), entered July 29, 2011. The
judgment and order, among other things, denied the motion of
plaintiffs to set aside the jury verdict.

     It is hereby ORDERED that the judgment and order so appealed from
is unanimously affirmed without costs.

     Memorandum: Action No. 1 was commenced by plaintiff, Midstate
Mutual Insurance Company (Midstate), as subrogee of Doreen L. Toporek
and Michael I. Rui, and Toporek and Rui (hereafter, plaintiffs) in
turn commenced action No. 2 seeking damages related to a fire in a
pick-up truck owned by Toporek that spread to plaintiffs’ home.
                                 -2-                          1462
                                                         CA 12-00961

Midstate and plaintiffs alleged in their respective actions that
defendants were negligent with respect to certain repairs. The jury
returned a verdict in favor of defendants, and Supreme Court denied
the motion of Midstate and plaintiffs pursuant to CPLR 4404 seeking a
new trial.

     On appeal, Midstate and plaintiffs contend that the court abused
its discretion in denying their request for a missing witness charge
at the joint trial with respect to the sole shareholder of defendant
Lakeshore Tire & Auto, Inc. (Lakeshore), and Lakeshore’s employee. We
reject that contention. Although the attorney for Lakeshore indicated
during his opening argument that those witnesses would testify about
repairs made to the vehicle, Midstate and plaintiffs failed to
establish that the charge was warranted because no material fact about
which those witnesses would testify was at issue (see generally Doviak
v Lowe’s Home Ctrs., Inc., 63 AD3d 1348, 1352). Lakeshore agreed with
the testimony of plaintiffs’ witnesses regarding what repairs were
made and further agreed that its employees did not detect a faulty
fuel line. The only disputed issue was the cause of the fire, which
was the subject of expert testimony. We further note that, in any
event, the request for the missing witness charge was not timely
inasmuch as it was not made until after the close of proof, rather
than at the time Midstate and plaintiffs became aware that Lakeshore
would not call the witnesses (see Chary v State of New York, 265 AD2d
913, 914; see generally People v Gonzalez, 68 NY2d 424, 427-428).




Entered:   February 1, 2013                     Frances E. Cafarell
                                                Clerk of the Court
