(dissenting in part). Plaintiff sustained injury in an automobile accident on April 22, 1986. She was initially treated for back pain by her family physician, Dr. Hainey, before being referred to an orthopedic surgeon, Dr. Arthur Gray, who first saw her in July 1986. Plaintiff continued to receive treatment from Dr. Gray until late in 1987 when she moved from Bronx County to Hopewell Junction, New York. Except for a single consultation with Dr. Gray in October 1990, plaintiff received treatment from Dr. Memoli, also an orthopedic surgeon, whom plaintiff testified that she saw some 9 or 10 times through mid-1990. In April 1990, plaintiff was treated as an outpatient at St. Francis Hospital for back pain and consulted a neurologist, Dr. Mandel.
In connection with the litigation, plaintiff was examined by Dr. Melvin Adler, Board certified in orthopedic surgery, on *42February 9, 1988 and by Dr. Harvey Goldberg, Board certified in physical medicine rehabilitation, on August 22, 1990. Both were called as witnesses at trial. It is unknown on whose behalf Dr. Goldberg’s examination of plaintiff was conducted, but it is not disputed that he did not examine plaintiff at her request. In any event, Dr. Goldberg testified as plaintiff’s witness. Dr. Adler appeared as defendant’s witness. Plaintiff also called Dr. Gray as her treating physician. Dr. Hainey had since retired from his family practice and moved to New Jersey and was not called to testify. Dr. Memoli did not respond to requests for medical records concerning plaintiff and could not be called to testify as provided by Uniform Rules for Trial Courts (22 NYCRR) § 202.17 (h).
On appeal, defendants contend that the failure to give a missing witness charge with respect to both Dr. Hainey and Dr. Memoli requires reversal of the judgment in favor of plaintiff and a new trial on the issue of damages. With respect to Dr. Hainey, it is not disputed that he was beyond the jurisdiction of the court and not subject to its subpoena power (Zeeck v Melina Taxi Co., 177 AD2d 692, 694, citing Sarac v Bertash, 148 AD2d 436, 437). Even ignoring the question of whether his testimony would be merely cumulative to that given by Dr. Gray, a treating specialist, these circumstances are sufficient to defeat the inference that Dr. Hainey was under plaintiff’s control as a matter of law (supra). The only issue before this Court is therefore whether a missing witness charge was required on account of plaintiff’s failure to produce Dr. Memoli as a witness at trial.
With respect to establishing prima facie entitlement to a missing witness charge, the Court of Appeals has stressed that "the mere failure to produce a witness at trial, standing alone, is insufficient to justify the charge. Rather, it must be shown that the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, and that the witness is available to such party” (People v Gonzalez, 68 NY2d 424, 427). The Court went on to state: "The burden, in the first instance, is upon the party seeking the charge to promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call him to testify. In some instances, this information may *43be available prior to trial; at other times, it may not become apparent until there has been testimony of a witness at trial. In all events, the issue must be raised as soon as practicable so that the court can appropriately exercise its discretion and the parties can tailor their trial strategy to avoid 'substantial possibilities of surprise’ ” (68 NY2d, supra, at 427-428, quoting McCormick, Evidence § 272, at 806 [3d ed]).
These rules, stated by the Court of Appeals in the context of a criminal trial, are equally compelling in the context of a personal injury action in which the exchange of medical reports is governed by a detailed court rule (22 NYCRR 202.17) sufficiently comprehensive to include sanctions for noncompliance — specifically preclusion of evidence contained in reports not exchanged, including introduction of their contents and the testimony of the physicians who compiled them (22 NYCRR 202.17 [h]). Concededly, no report from Dr. Memoli was ever served on defendants by plaintiff and, therefore, it was apparent, prior to trial, that he could not be called to testify. Yet defendants did not raise the issue until the precharge conference which was conducted after the close of evidence. Nor did defendants make any attempt to compel plaintiff to produce reports which they belatedly claim to be vital to their defense (22 NYCRR 202.17 [f], [j]).
Under the circumstances of this case, the missing witness issue was not timely raised. Defendants did not suddenly become aware of plaintiff’s treatment by Dr. Memoli during the course of trial, nor do they allege as much. In fact, at the time of the examination conducted on August 22, 1990, in excess of six months prior to trial, Dr. Goldberg, examining on behalf of some unidentified third party, was furnished with reports prepared by Dr. Memoli. In the course of his testimony, Dr. Goldberg made reference to a report containing a diagnosis dated November 3, 1988 and a radiology report dated October 3, 1988, both from Dr. Memoli. The contents of these reports were excluded upon defendants’ objection, and it is clear that an appearance by the doctor would have raised a similar objection pursuant to 22 NYCRR 202.17 (h). It is an anomalous position, espoused by defendants and endorsed by the majority, which would permit a party to object to the introduction of evidence and then require the Trial Justice to deliver a missing witness charge for failure to introduce the very evidence successfully excluded.
Nor is there any substance to the argument, advanced by defendants and embraced by the dissenter at Appellate Term, *44that the testimony of Dr. Memoli could not be considered cumulative because only he could testify as to plaintiffs condition from early 1988 through mid-1990. Defendants must have known of this asserted lapse in documentation prior to trial and, thus, this issue is also not timely raised. Moreover, evidence regarding plaintiffs condition during this time was received in the form of the testimony of Dr. Adler, who examined plaintiff in February 1988, the hospital records from St. Francis Hospital, where plaintiff was seen in April 1990, and the testimony of Dr. Goldberg and Dr. Gray, who respectively examined plaintiff in August and October of that year. There is no indication in the record that plaintiffs condition had changed from the time of the examination conducted in February of 1988 to those conducted from April through October of 1990. Defendants have therefore failed to demonstrate that the testimony of Dr. Memoli would be noncumulative to that given by the three other doctors. The suggestion by defense counsel that Dr. Memoli might have pursued a slightly different approach to plaintiffs treatment does not reflect any change in her underlying condition. Nor does it imply any disparity in Dr. Memoli’s assessment of plaintiffs condition and the opinions offered by Dr. Gray and Dr. Goldberg. In view of Dr. Gray’s testimony that, like Dr. Memoli, he prescribed exercise therapy, the only difference in treatment pointed out by defendants (after the close of evidence during the precharge conference) is that Dr. Memoli advised plaintiff to discontinue wearing a corset.
There is no merit to defendants’ contention that a missing witness charge is required with respect to Dr. Memoli because plaintiff failed to call a treating physician to testify on her behalf. Contrary to the position advocated by the majority, a plaintiff is not required to call every physician involved in her treatment, and a defendant is not entitled to a missing witness charge unless it is demonstrated that the doctor not called will give evidence which is substantial and not merely cumulative (Oswald v Heaney, 70 AD2d 653). Moreover, this matter is distinguishable from the authority relied upon by the majority in which a missing witness charge was found to be warranted for failure to call any treating physician to testify (Dayanim v Unis, 171 AD2d 579 [plaintiff failed to lay foundation for admission of office records of her treating physicians]). It is clear that if plaintiff had not called Dr. Gray to testify, a missing witness charge would have been requested with respect to him on the ground that he was the first *45specialist to treat her (Griffin v Nissen, 89 AD2d 808). The production of every medical witness to testify to the same condition unnecessarily burdens both the court’s time and the plaintiffs resources.
Finally, there is some question if Dr. Memoli can be said to have been under plaintiff’s "control”, as that term is construed by case law (People v Gonzalez, supra, at 428-429). It is not disputed that six letters from plaintiff’s counsel sent to Dr. Memoli between August 16, 1989 and December 11, 1990, requesting plaintiff’s medical records, went unanswered. Thus, it cannot be said that the failure to produce him as a witness is entirely unexplained (compare, Mashley v Kerr, 63 AD2d 1084, affd 47 NY2d 892). The majority’s suggestion that plaintiff should have subpoenaed her own doctor, apart from being unrealistic, is a tacit concession that this witness was not, as asserted, under plaintiff’s control. Moreover, in contrast to the case of Chandler v Flynn (111 AD2d 300, 302, appeal dismissed 67 NY2d 647), relied upon by defendants, the record in this case is not "devoid of any indication that [plaintiff] was no longer under this doctor’s care at the time of trial”, or that the physician not called was in a position to provide significant evidence with respect to a closely contested factual issue (supra; compare, Trainor v Oasis Roller World, 151 AD2d 323 [employee expected to testify to question of actual notice]; Grun v Sportsman, Inc., 58 AD2d 802 [employee expected to be called to testify as to source of spark igniting fumes]; Griffin v Nissen, supra [doctor expected to be called to testify regarding preexisting, chronic back problem]).
The question of whether testimony would be cumulative is entrusted to the sound discretion of the Trial Justice (People v Gonzalez, supra, at 430) which will not be disturbed upon appeal unless improvidently exercised (People v Jackson, 190 AD2d 533). Defendants have demonstrated neither that they raised the missing witness issue in a timely fashion nor that Supreme Court abused its discretion in determining that the evidence which the witness might have given would have been cumulative.
Accordingly, the order of the Appellate Term, First Department (Riccobono, J. P., and Miller, J.; McCooe, J., dissenting in part), entered June 26, 1992, which affirmed the judgment of Civil Court, Bronx County (Stanley Green, J.), entered July 15, 1991 in favor of plaintiffs, should be affirmed, without costs.
*46Milonas, J. P., Ellerin and Asch, JJ., concur with Kassal, J.; Rubin, J., dissents in part in a separate opinion.
Order of the Appellate Term of the Supreme Court, First Department, entered June 26, 1992, which affirmed the judgment of the Civil Court, Bronx County, entered July 15, 1991, is reversed, on the law, and the matter remitted for a new trial on the issue of damages, without costs.