
    Noramie Jasmin et al., Appellants, v Mary Raju, Respondent.
    [648 NYS2d 39]
   In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Rockland County (Miller, J.), dated October 24, 1994, which is in favor of the defendant and against them, dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The plaintiffs failed to sustain their burden of showing that a missing witness charge should not be given regarding a radiologist who had performed an MRI on Noramie Jasmin in 1992. The physicians who testified gave conflicting testimony regarding the MRI results. Therefore, the radiologist’s testimony was critical in resolving the issue of whether a pre-existing injury existed and it was not cumulative (see, People v Gonzalez, 68 NY2d 424, 428; see also, Kupfer v Dalton, 169 AD2d 819, 820).

The evidence supported the jury’s verdict that Noramie Jasmin did not sustain a serious injury as defined in Insurance Law § 5102 (d). As a result, the plaintiffs’ argument that the Supreme Court erred in failing to grant her motion pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability is academic. Miller, J. P., Pizzuto, Joy and McGinity, JJ., concur.  