Summary
In Boyle v City of New York (291 AD2d 315, 315 [1st Dept 2002]), the court denied a motion for spoliation sanctions for the destruction of 15-year-old records two years before the plaintiff requested them.
Summary of this case from Century Indem. Co. v. Brooklyn Union Gas Co.Opinion
298-298A
February 21, 2002.
Orders, Supreme Court, New York County (Michael Stallman, J.), entered March 13, 2001, which denied as untimely defendants-appellants' motion for summary judgment, denied plaintiff's cross motion to strike defendant Rodriguez's answer except to preclude him from testifying unless he appeared for deposition by a date certain, and denied plaintiff's motion for sanctions against defendant City for spoliation of evidence, additional disclosure and certain jury charges, unanimously affirmed, without costs.
SAMUEL M. STONE, for plaintiff-respondent-appellant.
HELEN P. BROWN, for defendant-respondent.
FRANK J. LOMBARDO, for defendants-appellants-respondents.
SAMUEL M. STONE, for plaintiff-appellant.
HELEN P. BROWN FRANK J. LOMBARDO, for defendants-respondents.
Before: Williams, J.P., Mazzarelli, Ellerin, Lerner, Rubin, JJ.
We deem defendant-appellants' motion for summary judgment to have been made on behalf of defendant Rodriguez as well as defendants Carro and Ibiza Restaurant, and find that the motion court properly refused to entertain it some 10 months after Rodriguez's answer had been reinstated (CPLR 3212[a]). The conditional sanction imposed on defendant Rodriguez for his failure to appear at deposition was also a proper exercise of discretion. Plaintiff's motion to sanction defendant City for spoliation of evidence or to compel disclosure concerning its destruction of certain sidewalk maintenance records was properly denied absent any evidence of impropriety in the destruction of 15-year-old records two years before plaintiff even requested them. Plaintiff's requests for certain charges to the jury were properly denied as premature.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.