Opinion
2001-02668
Argued December 18, 2001.
January 22, 2002.
In an action, inter alia, to recover damages for personal injuries arising from strict products liability, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated March 12, 2001, as denied his cross motion to strike the respective answers of the defendants Apple Eve, L.P., and Johanna Foods, Inc., based on their alleged spoliation of evidence.
Brody, O'Connor O'Connor, Northport, N.Y. (Patricia A. O'Connor and Scott A. Brody of counsel), for appellant.
Patrick L. MacDonnell (Brody, Fabiani Cohen, New York, N.Y. [Christopher J. Crawford] of counsel), for respondent Apple Eve, L.P.
Before: MYRIAM J. ALTMAN, J.P., THOMAS A. ADAMS, SANDRA L. TOWNES, A. GAIL PRUDENTI, JJ.
ORDERED that the appeal from so much of the order as denied that branch of the cross motion which was to strike the answer of the defendant Johanna Foods, Inc., is dismissed as academic; and it is further,
ORDERED that the order is affirmed insofar as reviewed; and it is further,
ORDERED that the defendant Apple Eve, L.P., is awarded one bill of costs.
Contrary to the plaintiff's contention, the Supreme Court properly denied that branch of his cross motion which was to strike the answer of the defendant Apple Eve, L.P., based on its alleged spoliation of evidence, as nothing in the record demonstrates that this defendant destroyed evidence which it knew might be needed for future litigation (see, Abenante v. Star Gas Corp., 278 A.D.2d 438; Gallo v. Bay Ridge Lincoln Mercury, 262 A.D.2d 450; Popfinger v. Terminix Intl. Co. Ltd. Partnership, 251 A.D.2d 564).
The plaintiff's appeal from so much of the order as denied that branch of its motion which was to strike the answer of the defendant Johanna Foods, Inc., must be dismissed as academic, as this court previously determined that Johanna Foods, Inc., was entitled to summary judgment dismissing the complaint insofar as asserted against it (see, Santorelli v. Apple Eve, 282 A.D.2d 731).
ALTMAN, J.P., ADAMS, TOWNES and PRUDENTI, JJ., concur.