Opinion
June 6, 1994
Appeal from the Supreme Court, Kings County (Dowd, J.).
Ordered that the judgment is affirmed, with costs.
A party who seeks an adverse inference charge against an opponent who fails to produce a document must make a prima facie showing that the document in question actually exists and that it is under the opposing party's control (see, Fares v. Fox, 198 A.D.2d 396; Eagle Pet Serv. Co. v. Pacific Empl. Ins. Co., 175 A.D.2d 471). The party requesting the charge must also show that the adverse party has no reasonable explanation for not producing the document (PJI 1:77). We find that, in light of the defendant's reasonable excuse that they no longer had six-year-old maintenance records, the trial court properly denied the plaintiffs' request for a missing document charge.
Further, the trial court did not improvidently exercise its discretion in refusing to allow the plaintiffs' attorney to testify for the purpose of impeaching the credibility of the plaintiff Anna Lucia Scaglione's hospital roommate, a nonparty witness, on a collateral matter (see, Halloran v. Virginia Chems., 41 N.Y.2d 386; Pipitone v. Zweig, 186 A.D.2d 73).
We have considered the plaintiffs' remaining contentions and find that they are either without merit or unpreserved for appellate review. Rosenblatt, J.P., Miller, Lawrence and Florio, JJ., concur.