A Creations, Inc. v. Allison Che Fashions, Inc.

280 A.D.2d 387, 721 N.Y.S.2d 230, 2001 N.Y. App. Div. LEXIS 1741

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 2001
• Status: Published

Opinion

—Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered December 16, 1999, which, in an action for goods sold and delivered, granted defendant’s motion pursuant to CPLR 3126 (3) to strike plaintiffs complaint and for judgment on the issue of plaintiffs liability on defendant’s counterclaims for breach of warranty, unanimously affirmed, with costs.

As the motion court held, plaintiffs claim, in opposition to the motion, that the documents sought by defendant either no longer exist or were never kept in the first place is thoroughly undermined by plaintiffs principals’ earlier deposition testimony that such documents do exist and indeed some were even examined subsequent to the commencement of the action. The inference is inescapable that at some point after the first of those depositions the documents in question were willfully destroyed in contumacious disobedience of the two court orders that directed their production (see, Siegman v Rosen, 270 AD2d 14). Concur — Rosenberger, J. P., Nardelli, Andrias, Ellerin and Saxe, JJ.