Schwartz v. 38 Town Associates

Appellate Division of the Supreme Court of New York

Schwartz v. 38 Town Associates

187 A.D.2d 377, 589 N.Y.S.2d 487, 1992 N.Y. App. Div. LEXIS 13107

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 19, 1992

StatusPublished

Cited by2 cases

This text of 187 A.D.2d 377 (Schwartz v. 38 Town Associates) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schwartz v. 38 Town Associates, 187 A.D.2d 377, 589 N.Y.S.2d 487, 1992 N.Y. App. Div. LEXIS 13107 (N.Y. Ct. App. 1992).

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Opinion

Judgment, Supreme Court, New York County (Bruce McM. Wright, J.), entered December 12, 1991, dismissing the complaint for failure to establish a prima facie case, and dismissing the third-party complaint, unanimously affirmed, with costs.

In this action to recover damages for lost merchandise, that allegedly disappeared after plaintiffs company was evicted from defendant landlord’s premises, the only witness at trial to testify about the actual inventory of merchandise on the date of eviction and the date, two weeks later, when the items were moved and the loss discovered, was plaintiff’s production manager. Because this witness failed to return to court to complete his cross-examination, which had barely begun, the court, at the close of plaintiffs case, granted defendant’s motion to strike his testimony as well as the document purporting to list the missing items that had been introduced during his testimony. Contrary to plaintiff’s argument, this evidence was properly stricken, since defendant was deprived, through no fault of its own, of the opportunity to cross-examine this critical witness regarding the claimed losses (see, Bartkowiak v St. Adalbert’s R. C. Church Socy., 40 AD2d 306, 308). Without this testimony or the documentary evidence, there was insufficient evidence to establish either a prima facie case of the loss or the amount of damages. Concur— Carro, J. P., Rosenberger, Wallach and Ross, JJ.

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Judgment, Supreme Court, New York County (Bruce McM. Wright, J.), entered December 12, 1991, dismissing the complaint for failure to establish a prima facie case, and dismissing the third-party complaint, unanimously affirmed, with costs.

In this action to recover damages for lost merchandise, that allegedly disappeared after plaintiffs company was evicted from defendant landlord’s premises, the only witness at trial to testify about the actual inventory of merchandise on the date of eviction and the date, two weeks later, when the items were moved and the loss discovered, was plaintiff’s production manager. Because this witness failed to return to court to complete his cross-examination, which had barely begun, the court, at the close of plaintiffs case, granted defendant’s motion to strike his testimony as well as the document purporting to list the missing items that had been introduced during his testimony. Contrary to plaintiff’s argument, this evidence was properly stricken, since defendant was deprived, through no fault of its own, of the opportunity to cross-examine this critical witness regarding the claimed losses (see, Bartkowiak v St. Adalbert’s R. C. Church Socy., 40 AD2d 306, 308). Without this testimony or the documentary evidence, there was insufficient evidence to establish either a prima facie case of the loss or the amount of damages. Concur— Carro, J. P., Rosenberger, Wallach and Ross, JJ.

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Bluebook (online)

187 A.D.2d 377, 589 N.Y.S.2d 487, 1992 N.Y. App. Div. LEXIS 13107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartz-v-38-town-associates-nyappdiv-1992.

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