BOYLE v. Harry Macklowe, et al., Defendants, (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.

 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.