Opinion
April 18, 1983
In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from a judgment of the Supreme Court, Queens County (Lakritz, J.), entered January 14, 1982, which dismissed their complaint against the defendants, upon a jury verdict. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The trial court erred in giving the jury a missing witness charge regarding the plaintiffs' failure to produce the infant plaintiff (who was only five years of age at the time of the underlying accident), without also instructing the jury to consider the infant's age and the circumstances surrounding the accident in determining whether or not they deemed it appropriate in this case to invoke the permissible inferences authorized in such a charge (see Treuhaft v Bender, 193 App. Div. 666, affd 233 N.Y. 556). Damiani, J.P., Mangano, Gulotta and Brown, JJ., concur.