| Cohen v Jordan Servs., Inc. |
| 2008 NY Slip Op 02548 [49 AD3d 680] |
| March 18, 2008 |
| Appellate Division, Second Department |
| Diane Mackie Cohen, Respondent, v Jordan Services, Inc.,et al., Appellants, et al., Defendant. |
—[*1] Robert Jay Dinerstein, P.C., Commack, N.Y., for respondent.
In an action, inter alia, to recover damages for intentional infliction of emotional distress,prima facie tort, and tortious interference with contract, the defendants Jordan Services, Inc.,Cambridge Network Providers, LLC, Northeast Meds, P.C., and Sandra R. Horowitz appeal (1),as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Doyle,J.), dated September 5, 2006, as granted that branch of the plaintiff's motion which was, in effect,to preclude them from asserting the existence and/or enforceability of a noncompete agreementallegedly signed by the plaintiff on February 10, 2000, to the extent of precluding the appellantsfrom offering at trial any evidence supporting or opposing the alleged agreement in the event thatthey failed to produce the original of the alleged agreement within 10 days of service of a copy ofthe order with notice of entry, and (2), from an order of the same court dated May 21, 2007which denied their motion for leave to renew and reargue.
Ordered that the appeal from so much of the order dated May 21, 2007 as denied that branchof the motion which was for leave to reargue is dismissed, as no appeal lies from an orderdenying reargument; and it is further,
Ordered that the order dated September 5, 2006 is reversed insofar as appealed from, and thatbranch of the plaintiff's motion which was, in effect, to preclude the appellants from asserting theexistence and/or enforceability of the subject noncompete agreement is denied; and it is further,[*2]
Ordered that the appeal from so much of the order datedMay 21, 2007 as denied that branch of the motion which was for leave to renew is dismissed asacademic in light of our determination on the appeal from the order dated September 5, 2006;and it is further,
Ordered that one bill of costs is awarded to the appellants.
The plaintiff failed to conclusively establish that the evidence was willfully destroyed ordiscarded in order to frustrate her interests. Accordingly, the extreme sanction of preclusion isnot warranted (see Vaughn v City of New York, 201 AD2d 556, 558 [1994]).
In view of our determination, we do not reach the parties' remaining contentions. Skelos, J.P.,Fisher, Covello and Eng, JJ., concur.