ADGER v. KLEIN (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Alexandra D. Murphy, J.), dated September 27, 2024. The judgment, upon a jury verdict in favor of the defendant Henry Klein and against the plaintiff on the issue of liability, is in favor of that defendant and against the plaintiff dismissing the complaint insofar as asserted against that defendant.

ORDERED that the judgment is affirmed, with costs.

The plaintiff allegedly was injured as a passenger in a vehicle operated by the defendant Cheryl Mathis, when it collided with a vehicle operated by the defendant Henry Klein. Following a jury trial, the jury rendered a verdict finding Mathis at fault in the happening of the collision, with no negligence attributed to Klein. Thereafter, a judgment was entered in favor of Klein and against the plaintiff dismissing the complaint insofar as asserted against Klein. The plaintiff appeals.

Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in precluding Mathis from testifying at trial based on her failure to appear for her deposition (see CPLR 3126; Galarza v. 25 Hope St. Assoc., LLC, 209 AD3d 984, 986; Jaffe v. Hubbard, 299 A.D.2d 395, 396). The plaintiff's further contention that the preclusion deprived her of the ability to prove her claim is unavailing. Although Mathis was precluded from testifying, the plaintiff was still able to establish her case through her own testimony (cf. Quintanilla v. Harchack, 259 A.D.2d 681, 682). Further, we note that the plaintiff repeatedly opposed an adjournment so that Mathis could be deposed and that it was not until after the jury had been selected and one day before the trial was scheduled to commence that the plaintiff agreed to an adjournment.

Although the Supreme Court should not have given an adverse inference charge against Mathis (see Bzezi v. Eldib, 112 AD3d 772, 775), the error is harmless (see CPLR 2002; see generally Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 150 AD3d 192, 204, affd 33 NY3d 389).

IANNACCI, J.P., WOOTEN, LOVE and GOLDBERG VELAZQUEZ, JJ., concur.