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Schwartz v. 38 Town Associates

Appellate Division of the Supreme Court of New York, First Department
Nov 19, 1992
187 A.D.2d 377 (N.Y. App. Div. 1992)

Opinion

November 19, 1992

Appeal from the Supreme Court, New York County (Bruce McM. Wright, J.).


In this action to recover damages for lost merchandise, that allegedly disappeared after plaintiff's company was evicted from defendant landlord's premises, the only witness at trial to testify about the actual inventory of merchandise on the date of eviction and the date, two weeks later, when the items were moved and the loss discovered, was plaintiff's production manager. Because this witness failed to return to court to complete his cross-examination, which had barely begun, the court, at the close of plaintiff's case, granted defendant's motion to strike his testimony as well as the document purporting to list the missing items that had been introduced during his testimony. Contrary to plaintiff's argument, this evidence was properly stricken, since defendant was deprived, through no fault of its own, of the opportunity to cross-examine this critical witness regarding the claimed losses (see, Bartkowiak v St. Adalbert's R.C. Church Socy., 40 A.D.2d 306, 308). Without this testimony or the documentary evidence, there was insufficient evidence to establish either a prima facie case of the loss or the amount of damages.

Concur — Carro, J.P., Rosenberger, Wallach and Ross, JJ.


Summaries of

Schwartz v. 38 Town Associates

Appellate Division of the Supreme Court of New York, First Department
Nov 19, 1992
187 A.D.2d 377 (N.Y. App. Div. 1992)
Case details for

Schwartz v. 38 Town Associates

Case Details

Full title:BART SCHWARTZ, Appellant, v. 38 TOWN ASSOCIATES, Respondent and…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 19, 1992

Citations

187 A.D.2d 377 (N.Y. App. Div. 1992)
589 N.Y.S.2d 487

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