HERNANDEZ v. CITY OF NEW YORK (2007)

Supreme Court, Appellate Division, Second Department, New York.

Julio HERNANDEZ, appellant, v. CITY OF NEW YORK, et al., respondents.

Decided: September 11, 2007

ROBERT W. SCHMIDT, J.P., GLORIA GOLDSTEIN, JOSEPH COVELLO, and THOMAS A. DICKERSON, JJ.

Rubert & Gross, P.C., New York, N.Y. (Soledad Rubert of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart, Patrick Mantione, and Marta Ross of counsel), for respondents.

In an action, inter alia, to recover damages for assault and battery, the plaintiff appeals from an order of the Supreme Court, Queens County (Elliot, J.), dated July 15, 2005, which denied his motion, among other things, to strike the defendants' answer on the ground of spoliation of evidence.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied the plaintiff's motion, inter alia, to strike the defendants' answer as a sanction for the alleged spoliation of evidence. The subject clothing was not destroyed or lost, and the plaintiff has not been deprived of evidence necessary to make out a prima facie case (see Denoyelles v. Gallagher, 40 A.D.3d 1027, 834 N.Y.S.2d 868; Iannucci v. Rose, 8 A.D.3d 437, 438, 778 N.Y.S.2d 525).

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