Gonzalez v City of New York (2007 NY Slip Op 03348)

Gonzalez v City of New York

2007 NY Slip Op 03348 [39 AD3d 367]

April 19, 2007

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, June 6, 2007

Kathleen Gonzalez, an Infant, by Her Mother and Natural Guardian, Rita Porto, Appellant,
v
City of New York et al., Respondents.

—[*1] David A. Kapelman, New York, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Deborah A. Brenner of counsel), for respondents.

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered March 14, 2006, which denied plaintiff's motion for an order to strike defendants' answer for allegedly spoliating evidence, unanimously affirmed, without costs.

In this personal injury action, the court properly exercised its discretion in declining to strike defendants' answer where plaintiff failed to establish that defendants had willfully or contumaciously destroyed records in an effort to frustrate discovery (see Rosen v Corvalon, 309 AD2d 723 [2003]), or that the missing records constituted crucial evidence without which she would be unable to establish a prima facie case (see Tawedros v St. Vincent's Hosp. of N.Y., 281 AD2d 184 [2001]). Concur—Mazzarelli, J.P., Sullivan, Sweeny, Malone and Kavanagh, JJ.