DENNIS v. NAB (2005)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated April 15, 2004, which, inter alia, denied that branch of their motion which was to strike the defendant's answer due to its alleged spoliation of evidence.

ORDERED that the order is affirmed, with costs.

 The determination of spoliation sanctions is within the broad discretion of the court (see Barahona v. Trustees of Columbia Univ. in the City of New York, 16 A.D.3d 445, 792 N.Y.S.2d 113).   In this case, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' motion which was to strike the defendant's answer.   The plaintiffs failed to demonstrate that the alleged loss of the bungee cord that caused his injury was the result of intentional or negligent spoliation (see Barahona v. Trustees of Columbia Univ. in the City of New York, supra ).   Further, the plaintiffs did not demonstrate that the bungee cord was essential to their case or that they were prejudiced by its loss (see Ifraimov v. Phoenix Indus. Gas, LLC, 4 A.D.3d 332, 333, 772 N.Y.S.2d 78;  Foncette v. LA Express, 295 A.D.2d 471, 472, 744 N.Y.S.2d 429).

The plaintiffs' remaining contention is without merit.