Ortega v City of New York

2006 NYSlipOp 09205

December 5, 2006

Appellate Division, Second Department

As corrected through Wednesday, February 14, 2007

Castalia Ortega et al., Appellants, v City of New York, Respondent.

—[*1]In an action, inter alia, to recover damages for spoliation of evidence, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated February 16, 2006, as denied that branch of their motion which was for summary judgment on the issue of liability on the cause of action to recover damages for spoliation, and searched the record and awarded summary judgment to the defendant dismissing that cause of action insofar as asserted by the plaintiff Castalia Ortega.

Ordered that the order is affirmed insofar as appealed from, with costs, and, upon searching the record, summary judgment is awarded to the defendant dismissing the cause of action to recover damages for spoliation of evidence insofar as asserted by the plaintiff Manuel Peralta.

We reject the plaintiffs' contention that they have a cause of action to recover damages for spoliation of evidence (see MetLife Auto & Home v Joe Basil Chevrolet, 1 NY3d 478 [2004], affg 303 AD2d 30 [2002]; Carella v Reilly & Assoc., 22 AD3d 623 [2005]). Thus, the Supreme Court properly denied that branch of the plaintiffs' motion which was for summary judgment on the issue of liability on that cause of action, and searched the record and awarded summary judgment to the defendant dismissing that cause of action insofar as asserted by the plaintiff Castalia Ortega. Moreover, we exercise our authority to search the record and award summary judgment to the defendant dismissing the cause of action to recover damages for spoliation of evidence insofar as asserted by the plaintiff [*2]Manuel Peralta (see CPLR 3212 [b]; Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 31 AD3d 418 [2006]). Miller, J.P., Ritter, Santucci and Lunn, JJ., concur. [See 11 Misc 3d 848 (2006).]