Saccomagno v. City of New York

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Partnow, J.), dated May 4, 2005, which denied his motion, pursuant to CPLR 3126, to strike the answer of the defendant New York City Transit Authority or impose sanctions based upon spoliation of evidence.

Ordered that the appeal is dismissed, without costs or disbursements.

The plaintiff contends that the Supreme Court erred in denying his motion to strike the answer of the defendant New York City Transit Authority or impose sanctions based on spoliation of evidence. However, the appeal has been rendered academic in light of our determination of the appeal from an amended order of the same court dated January 19, 2005 (see Saccomagno v New York City Tr. Auth., 29 AD3d 979 [2006] [decided herewith]). Schmidt, J.P., Krausman, Spolzino and Fisher, JJ., concur.