Soto v. New York City Transit Authority

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Partnow, J.), dated December 10, 2004, which denied their motion to strike the defendant’s answer pursuant to CPLR 3126 and based on spoliation of evidence.

Ordered that the order is affirmed, without costs or disbursements.

The plaintiffs failed to demonstrate willful and contumacious conduct on the part of the defendant which would warrant striking the answer pursuant to CPLR 3126 (see CPLR 3126 [3]; Byrne v City of New York, 301 AD2d 489, 490 [2003]; Cianciolo *547v Trism Specialized Carriers, 274 AD2d 369, 370 [2000]; Vancott v Great Atl. & Pac. Tea Co., 271 AD2d 438 [2000]; Brown v United Christian Evangelistic Assn., 270 AD2d 378, 379 [2000]; Harris v City of New York, 211 AD2d 663, 664 [1995]). Moreover, the plaintiffs failed to establish that the defendant negligently or intentionally destroyed key evidence, thereby depriving them of their ability to prove their claim (see Chiu Ping Chung v Caravan Coach Co., 285 AD2d 621 [2001]; cf. Baglio v St. John's Queens Hosp., 303 AD2d 341, 342 [2003]; DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, 53 [1998]). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiffs’ motion. H. Miller, J.P., Crane, Krausman, Rivera and Lifson, JJ., concur.