Mohammed v. Command Sec. Corp..

• Decision Date: 28 April 2011
• Citation: 83 A.D.3d 605,921 N.Y.S.2d 252,2011 N.Y. Slip Op. 03336
• Parties: Zalina MOHAMMED, Plaintiff–Appellant,v.COMMAND SECURITY CORP., et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 605

921 N.Y.S.2d 252

2011 N.Y. Slip Op. 03336

Zalina MOHAMMED, Plaintiff–Appellant,

v.COMMAND SECURITY CORP., et al., Defendants–Respondents.

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

April 28, 2011.

Weitzman Law Offices, L.L.C., New York (Raphael Weitzman of counsel), for appellant.Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for respondents.GONZALEZ, P.J., MAZZARELLI, SWEENY, RICHTER, MANZANET–DANIELS, JJ.

[921 N.Y.S.2d 253 , 83 A.D.3d 605]

Judgment, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered April 14, 2010, following a jury verdict in favor of defendants, dismissing the complaint, unanimously affirmed, without costs.

The Supreme Court properly denied plaintiff's eve-of-trial motion to strike the answer, which plaintiff sought, inter alia, as sanction for an alleged spoliation of evidence. Plaintiff failed to make the requisite showing that defendants purposely lost or destroyed evidence, knowing that it was needed in order to establish plaintiff's cause of action (see Burch v. New York City Hous. Auth., 72 A.D.3d 551, 898 N.Y.S.2d 842 [2010]; Scordo v. Costco Wholesale Corp., 77 A.D.3d 725, 910 N.Y.S.2d 440 [2010] ).

Plaintiff's claim that the Supreme Court erred by not ruling on a motion for leave to amend the pleadings in order to assert a claim for punitive damages is unsupported by the record on appeal, which shows that the court held the motion in abeyance. As such, the court's handling of the motion for leave to amend is not appealable as of right (see Evan S. v. Joseph R., 70 A.D.3d 668, 894 N.Y.S.2d 91 [2010]; Housberg v. Curtin, 209 A.D.2d 670, 671, 619 N.Y.S.2d 958 [1994] ), and we decline to address it. Were we to address the issue, we would find any error associated with the Supreme Court's disposition of plaintiff's request for leave to amend to be harmless, as “it failed to prejudice [plaintiff's] presentation of [her] case at trial” ( Gallagher's Stud v. Fishman, 156 A.D.2d 50, 55, 553 N.Y.S.2d 561 [1990] ). Supreme Court providently exercised its discretion by bifurcating the issues of liability and damages. At trial, plaintiff was able to testify about her state of mind and the nature of the accident, and the extent of her injuries “were neither probative of how the incident occurred nor so intertwined with the damages as to require a unified trial” ( Watanabe v. Sherpa, 44 A.D.3d 519, 519, 844 N.Y.S.2d 27 [2007]; see Fetterman v. Evans, 204 A.D.2d 888, 612 N.Y.S.2d 479 [1994] ).

Plaintiff failed to preserve for appellate review her contentions regarding the trial judge's conduct (see American Prop. Consultants v. Zamias Servs., 294 A.D.2d 217, 741 N.Y.S.2d 852 [2002], lv. denied 99 N.Y.2d 504, 755 N.Y.S.2d 711, 785 N.E.2d 733 [2003] ), and we decline to reach them. Were we to review the claims, we would find that, although some of the trial court's comments may have been intemperate, plaintiff was not deprived...