Think Pink, Inc. v. Rim, Inc.

19 A.D.3d 331, 798 N.Y.S.2d 413, 2005 N.Y. App. Div. LEXIS 7238

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 2005
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Edward H. Lehner, J.), entered June 30, 2004, which, after a nonjury trial, dismissed the complaint, unanimously affirmed, without costs.

There is no reason to disturb the trial court’s determination, which was based on a fair interpretation of the evidence, turning largely on credibility (see Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]). Contrary to plaintiffs contention, there was no basis for a missing document charge since defendant did not fail to comply with a discovery order. We disagree with plaintiff’s interpretation of that order inasmuch as plaintiff never sought—so the motion court never directed production of—the documents it claims were not provided. Moreover, the trial court aptly noted that plaintiff never sought discovery from defendant’s customers or their banks to support its theory that defendant kept a double set of books to avoid its contractual obligation to pay commissions based on its sales. In any event, by filing several notes of issue and certificates of readiness it waived further discovery (see Abbott v Memorial Sloan-Kettering Cancer Ctr., 295 AD2d 136 [2002]). Finally, while projections of profits need not be made with mathematical certainty (see Ashland Mgt. v Janien, 82 NY2d 395, 403 [1993]), those by plaintiffs expert were speculative.

We have considered plaintiff’s other contentions and find them unavailing. Concur—Andrias, J.P., Marlow, Sullivan, Ellerin and Nardelli, JJ.