Saccomagno v. City of New York

Full title: CHAD SACCOMAGNO, Appellant, v. CITY OF NEW YORK et al., Respondents

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: May 30, 2006

29 A.D.3d 980 (N.Y. App. Div. 2006)

2006 N.Y. Slip Op. 4269

814 N.Y.S.2d 879

Opinion

2005-05416.

May 30, 2006.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Partnow, J.), dated May 4, 2005, which denied his motion, pursuant to CPLR 3126, to strike the answer of the defendant New York City Transit Authority or impose sanctions based upon spoliation of evidence.

Robert C. Fontanelli, P.C., Brooklyn, N.Y. (Louis A. Badolato of counsel), for appellant.

Wallace D. Gossett (Steve S. Efron, New York, N.Y. [Renée L. Cyr], of counsel), for respondent.

Before: Schmidt, J.P., Krausman, Spolzino and Fisher, JJ., concur.

Ordered that the appeal is dismissed, without costs or disbursements.

The plaintiff contends that the Supreme Court erred in denying his motion to strike the answer of the defendant New York City Transit Authority or impose sanctions based on spoliation of evidence. However, the appeal has been rendered academic in light of our determination of the appeal from an amended order of the same court dated January 19, 2005 ( see Saccomagno v. New York City Tr. Auth., 29 AD3d 979 [decided herewith]).