Hernandez v. City of New York

In an action, inter alia, to recover damages for assault and battery, the plaintiff appeals from an *869order of the Supreme Court, Queens County (Elliot, J.), dated July 15, 2005, which denied his motion, among other things, to strike the defendants’ answer on the ground of spoliation of evidence.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the plaintiffs motion, inter alia, to strike the defendants’ answer as a sanction for the alleged spoliation of evidence. The subject clothing was not destroyed or lost, and the plaintiff has not been deprived of evidence necessary to make out a prima facie case (see Denoyelles v Gallagher, 40 AD3d 1027 [2007]; Iannucci v Rose, 8 AD3d 437, 438 [2004]). Schmidt, J.E, Goldstein, Covello and Dickerson, JJ., concur.