Appeal from a judgment of the Civil Court of the City of New York, Queens County (Edgar G. Walker, J.), entered January 10, 2006. The judgment, insofar as appealed from, after a nonjury trial, awarded plaintiff the principal sum of $8,424 as against defendant Crossbay Honda a/k/a Cycle Power, Inc.

Judgment, insofar as appealed from, reversed without costs and matter remanded to the court below for a new trial as against defendant Crossbay Honda a/k/a Cycle Power, Inc.

Plaintiff commenced the instant action to recover the sum of $8,424, the amount she paid to defendant Crossbay Honda a/k/a Cycle Power, Inc. (Crossbay) for a
motorcycle. Plaintiff alleged that she purchased the motorcycle for herself, and that defendant Crossbay improperly delivered it to defendant Edwin P. Birch. At trial, plaintiff testified that on July 6, 2002, she went with defendant Birch to defendant Crossbay to purchase a motorcycle. It is undisputed that plaintiff paid for the motorcycle. However, the bill of sale, the title and the insurance for the motorcycle were all placed in defendant Birch's name and delivered to him by [*2]defendant Crossbay.

The court below stated this was a case involving credibility and found in favor of plaintiff. While the court did not specifically indicate that an adverse inference was being drawn as against defendant Crossbay for its failure to call a former employee, the court nevertheless applied this principle when rendering its decision. It was error to draw an adverse inference against defendant Crossbay for its failure to subpoena and call as a witness its former employee who assisted plaintiff and defendant Birch on the day that the motorcycle was purchased (see Coliseum Towers Assoc. v County of Nassau, 2 AD3d 562 [2003]; Zeeck v Melina Taxi Co., 177 AD2d 692 [1991]; Hershkowitz v Saint Michel, 143 AD2d 809 [1988]). Defendant Crossbay was under no obligation to call a former employee as a witness.

Under the law, the court must notify the parties that it intends to draw an adverse inference to allow a party to tailor their trial strategy (see People v Gonzalez, 68 NY2d 424 [1986]). Although there was colloquy between the court and defendant Crossbay's counsel during summation concerning the possibility of the court drawing an adverse inference, this was insufficient to constitute adequate notice.

Accordingly, the judgment, insofar as appealed from, is reversed and a new trial ordered as against defendant Crossbay.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: April 03, 2008