Opinion
March 21, 1995
Appeal from the Supreme Court, New York County, Bruce McM. Wright, J.
Plaintiff's owner having testified that plaintiff's bookkeeper was unavailable to answer the subpoena that defendant had served, the court properly allowed defendant to controvert such evidence by the contradictory testimony of its accountant that he had seen the bookkeeper at plaintiff's premises at or about the time the subpoena was served, since this evidence bore directly on a material fact in dispute (see, Badr v. Hogan, 75 N.Y.2d 629, 634-635), namely, plaintiff's fraud in concealing a subpoenaed witness during disclosure who had direct knowledge of plaintiff's inventory. Evidence of other insurance claims was properly admitted as relevant to the issue of motive raised by the affirmative defenses of fraud and false swearing (see, Terpstra v. Niagara Fire Ins. Co., 26 N.Y.2d 70, 76), and it was for the trier of fact to determine the materiality of plaintiff's nondisclosure of prior losses in its insurance application (see, Ebisons Harounian Imports v. Travelers Indem. Co., 195 A.D.2d 371). The court properly exercised its discretion in precluding plaintiff's evidence of inventory as measured for a prior claim on the grounds that it was unreliable and would confuse the jury and unreasonably protract the trial. Defendant provided appropriate disclosure regarding its expert (see, Krygier v Airweld, Inc., 176 A.D.2d 700).
We have considered plaintiff's arguments regarding the court's charge and find them to be without merit.
Concur — Sullivan, J.P., Wallach, Asch, Nardelli and Williams, JJ.