Yechieli v. Glissen Chemical Co.

Appellate Division of the Supreme Court of New York

Yechieli v. Glissen Chemical Co.

40 A.D.3d 988, 836 N.Y.S.2d 668

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 22, 2007

StatusPublished

Cited by13 cases

This text of 40 A.D.3d 988 (Yechieli v. Glissen Chemical Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Yechieli v. Glissen Chemical Co., 40 A.D.3d 988, 836 N.Y.S.2d 668 (N.Y. Ct. App. 2007).

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Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an [989]*989order 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 AD2d 561, 562-563 [2003]; Foncette v LA Express, 295 AD2d 471, 472 [2002]; Birch Hill Farm v Reed, 272 AD2d 282, 283 [2000]). 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., Inc. v S.A.F. La Sala Corp., 36 AD3d 653 [2007]; De Los Santos v Polanco, 21 AD3d 397, 398 [2005]; Mylonas v Town of Brookhaven, supra at 563). 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., Inc. 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 AD2d 658 [1999]; Dannasch v Bifulco, 184 AD2d 415, 417 [1992]). Under the circumstances, this Court will not consider the argument (see Lewis v Boyce, 31 AD3d 395, 396 [2006]). Rivera, J.P., Florio, Dillon and Carni, JJ., concur.

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an [989]*989order 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 AD2d 561, 562-563 [2003]; Foncette v LA Express, 295 AD2d 471, 472 [2002]; Birch Hill Farm v Reed, 272 AD2d 282, 283 [2000]). 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., Inc. v S.A.F. La Sala Corp., 36 AD3d 653 [2007]; De Los Santos v Polanco, 21 AD3d 397, 398 [2005]; Mylonas v Town of Brookhaven, supra at 563). 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., Inc. 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 AD2d 658 [1999]; Dannasch v Bifulco, 184 AD2d 415, 417 [1992]). Under the circumstances, this Court will not consider the argument (see Lewis v Boyce, 31 AD3d 395, 396 [2006]). Rivera, J.P., Florio, Dillon and Carni, JJ., concur.

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40 A.D.3d 988, 836 N.Y.S.2d 668, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yechieli-v-glissen-chemical-co-nyappdiv-2007.

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