YECHIELI v. City of New York, et al., respondent. (2007)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated August 16, 2005, as denied that branch of their motion which was to strike the answer of the defendant City of New York pursuant to CPLR 3126 and based upon spoliation of evidence.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The plaintiffs failed to demonstrate conduct on the part of the defendant City of New York which would warrant striking its answer pursuant to CPLR 3126 or based upon spoliation of evidence (see Mylonas v. Town of Brookhaven, 305 A.D.2d 561, 562-563, 759 N.Y.S.2d 752;  Foncette v. LA Express, 295 A.D.2d 471, 472, 744 N.Y.S.2d 429;  Birch Hill Farm v. Reed, 272 A.D.2d 282, 283, 707 N.Y.S.2d 188).   In any event, the loss of the physical evidence in question does not deprive the plaintiffs of the means of proving their causes of action against the City (see E.W. Howell Co. v. S.A.F. La Sala Corp., 36 A.D.3d 653, 828 N.Y.S.2d 212;  De Los Santos v. Polanco, 21 A.D.3d 397, 398, 799 N.Y.S.2d 776;  Mylonas v. Town of Brookhaven, supra at 563, 759 N.Y.S.2d 752).   Accordingly, the Supreme Court providently exercised its discretion in determining that a negative inference charge would be an appropriate sanction (see E.W. Howell Co. v. S.A.F. La Sala Corp., supra).

 The plaintiffs' argument that the Supreme Court should have stricken the City's answer based upon its alleged failure to produce documentary evidence, in violation of the Supreme Court's discovery orders, was improperly raised for the first time in its reply papers (see CPLR 3126;  Matter of TIG Ins. Co. v. Pellegrini, 258 A.D.2d 658, 685 N.Y.S.2d 777;  Dannasch v. Bifulco, 184 A.D.2d 415, 417, 585 N.Y.S.2d 360).   Under the circumstances, this court will not consider the argument (see Lewis v. Boyce, 31 A.D.3d 395, 396, 817 N.Y.S.2d 659).