Abenante v. Star Gas Corp.

278 A.D.2d 438, 717 N.Y.S.2d 913, 2000 N.Y. App. Div. LEXIS 14125

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 26, 2000
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Orange County (Berry, J.), dated October 21, 1999, which denied their motion to strike the defendant’s answer and for summary judgment on the issue of liability.

Ordered that the order is affirmed, with costs.

The plaintiffs failed to demonstrate that the defendant disturbed or destroyed physical evidence that it knew might be needed for future litigation, or that they were prejudiced by any of the defendant’s actions. Therefore, the Supreme Court properly denied the plaintiffs’ motion (see, Gallo v Bay Ridge Lincoln Mercury, 262 AD2d 450; Popfinger v Terminix Inti. Co. Ltd. Partnership, 251 AD2d 564; Prasad v B.K. Chevrolet, 184 AD2d 626; compare, DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41). S. Miller, J. P., Friedmann, Krausman and Florio, JJ., concur.