THINK PINK INC v. RIM INC

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

THINK PINK, INC., Plaintiff-Appellant, v. RIM, INC., Defendant-Respondent.

Decided: June 30, 2005

ANDRIAS, J.P., MARLOW, SULLIVAN, ELLERIN, NARDELLI, JJ. Cascone Cole & Collyer, New York (Michael S. Cole of counsel), for appellant. O'Reilly Law Associates, P.C., New York (Terrence P. O'Reilly of counsel), for respondent.

Judgment, Supreme Court, New York County (Edward H. Lehner, J.), entered June 30, 2004, which, after a nonjury trial, dismissed the complaint, unanimously affirmed, without costs.

 There is no reason to disturb the trial court's determination, which was based on a fair interpretation of the evidence, turning largely on credibility (see Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992] ).   Contrary to plaintiff's contention, there was no basis for a missing document charge since defendant did not fail to comply with a discovery order.   We disagree with plaintiff's interpretation of that order inasmuch as plaintiff never sought-so the motion court never directed production of-the documents it claims were not provided.   Moreover, the trial court aptly noted that plaintiff never sought discovery from defendant's customers or their banks to support its theory that defendant kept a double set of books to avoid its contractual obligation to pay commissions based on its sales.   In any event, by filing several notes of issue and certificates of readiness it waived further discovery (see Abbott v. Memorial Sloan-Kettering Cancer Ctr., 295 A.D.2d 136, 742 N.Y.S.2d 830 [2002] ).   Finally, while projections of profits need not be made with mathematical certainty (see Ashland Mgt. v. Janien, 82 N.Y.2d 395, 403, 604 N.Y.S.2d 912, 624 N.E.2d 1007 [1993] ), those by plaintiff's expert were speculative.

We have considered plaintiff's other contentions and find them unavailing.