| Cohen v Jordan Servs., Inc. |
| 2008 NY Slip Op 02548 [49 AD3d 680] |
| March 18, 2008 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Diane Mackie Cohen, Respondent, v Jordan Services, Inc., et al., Appellants, et al., Defendant. |
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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 agreement allegedly signed by the plaintiff on February 10, 2000, to the extent of precluding the appellants from offering at trial any evidence supporting or opposing the alleged agreement in the event that they failed to produce the original of the alleged agreement within 10 days of service of a copy of the order with notice of entry, and (2), from an order of the same court dated May 21, 2007 which 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 branch of the motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated September 5, 2006 is reversed insofar as appealed from, and that branch of the plaintiff's motion which was, in effect, to preclude the appellants from asserting the existence 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 dated May 21, 2007 as denied that branch of the motion which was for leave to renew is dismissed as academic 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 or discarded in order to frustrate her interests. Accordingly, the extreme sanction of preclusion is not 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.