Jaffe v. PJA Motor Corp.

253 A.D.2d 853, 678 N.Y.S.2d 503, 1998 N.Y. App. Div. LEXIS 9806

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 1998
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of (1) an order of the Supreme Court, Nassau County (Burke, J.), dated September 11, 1996, as granted that branch of the defendants’ motion which was to strike his complaint as a sanction for failing to preserve evidence, and (2) an order of the same court, dated February 3, 1997, as, in effect, upon reargument and renewal, adhered to the original determination.

Ordered that the appeal from the order dated September 11, 1996, is dismissed, as that order was superseded by the order dated February 3, 1997, made upon reargument and renewal; and it is further,

Ordered that the order dated February 3, 1997, is affirmed insofar as appealed from; and it is further,

Ordered that the respondents are awarded one bill of costs.

Under the circumstances presented, the Supreme Court providently exercised its discretion in striking the plaintiff’s complaint as a sanction for his failure to preserve evidence crucial to the defense of the case (see, Kirkland v New York City Hous. Auth., 236 AD2d 170; Abar v Freightliner Corp., 208 AD2d 999; see also, Brancaccio v Mitsubishi Motors Co., US Dist Ct, SD NY, Aug. 31, 1992, Sweet, J. [1992 WL 189937]; Thiele v Oddy’s Auto & Mar., 906 F Supp 158).

We have reviewed the plaintiff’s remaining contentions and find them to be without merit. Thompson, J. P., Krausman, Goldstein and Luciano, JJ., concur.