Hanover Ins. Co. v. Krivine

• Decision Date: 03 April 2012
• Citation: 941 N.Y.S.2d 145,94 A.D.3d 419,2012 N.Y. Slip Op. 02431
• Parties: HANOVER INSURANCE COMPANY, etc., Plaintiff–Respondent, v. David Andrew KRIVINE, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02431
94 A.D.3d 419
941 N.Y.S.2d 145

HANOVER INSURANCE COMPANY, etc., Plaintiff–Respondent,
v.
David Andrew KRIVINE, et al., Defendants–Appellants.

Supreme Court, Appellate Division, First Department, New York.

April 3, 2012.

[941 N.Y.S.2d 146]

Law Offices of Michael P. Mangan, LLC, New York (Michael P. Mangan of counsel), for appellants.

Abrams, Gorelick, Friedman & Jacobson, LLP, New York (Steven DiSiervi of counsel), for respondent.

FRIEDMAN, J.P., DeGRASSE, FREEDMAN, ABDUS–SALAAM, JJ.

[94 A.D.3d 419] Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered October 7, 2010, after a jury trial, adjudging that plaintiff is the owner of the subject diamond and ordering non-party Gemological Institute of America (GIA) to release the diamond to plaintiff, unanimously affirmed, with costs.

The verdict was not against the weight of the evidence. The jury reached its finding that the 2001 Glick diamond and the 2005 Krivine diamond are the same diamond based on a fair interpretation of the evidence which showed that the two submissions to the GIA were identical in color, style, and clarity, had the same scratch on the surface, as well as the same cloud and feather inside the stone ( Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978] ). The fact that the GIA's reports on the two submissions showed a .03 millimeter difference in depth did not [94 A.D.3d 420] preclude the jury's verdict. Plaintiff's witnesses explained that the GIA's measurements had a margin of error of .02 millimeters per measurement which could result in a difference of up to .04 millimeters, and the actual difference in depth falls within that range.

The trial court, which “is vested with broad discretion to determine the materiality and relevance of proposed evidence” did not abuse its discretion in permitting plaintiff to introduce evidence that Ourel Golan was defendant Mimouni's nephew ( Hyde v. County of Rensselaer, 51 N.Y.2d 927, 929, 434 N.Y.S.2d 984, 415 N.E.2d 972 [1980] ).

Defendants failed to preserve their argument that plaintiff's cause of action is time-barred and thus, it is not properly before this Court. Were we to review this argument, we would find it without merit.