COHEN v. JORDAN

Ordered that the appeal from so much of the order dated May 21, 2007 as denied that branch of the motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order dated September 5, 2006 is reversed insofar as appealed from, and that branch of the plaintiff's motion which was, in effect, to preclude the appellants from asserting the existence and/or enforceability of the subject noncompete agreement is denied; and it is further,

Ordered that the appeal from so much of the order dated May 21, 2007 as denied that branch of the motion which was for leave to renew is dismissed as academic in light of our determination on the appeal from the order dated September 5, 2006; and it is further,

Ordered that one bill of costs is awarded to the appellants.

The plaintiff failed to conclusively establish that the evidence was willfully destroyed or discarded in order to frustrate her interests. Accordingly, the extreme sanction of preclusion is not warranted ( see Vaughn v City of New York, 201 AD2d 556, 558).

In view of our determination, we do not reach the parties' remaining contentions.