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ROBERTO MORALES, res, v. CITY OF NEW YORK ap, NASCO, def-res, ET AL., def

ROBERTO MORALES, res, v. CITY OF NEW YORK ap, NASCO, def-res, ET AL., def — (INDEX NO. 26575/05) In an action to recover damages for personal injuries, the defendants City of New York and New York City Police Department appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Velasquez, J.), dated February 28, 2013, as, upon renewal and reargument, in effect, vacated an order dated March 29, 2012, denying the plaintiff's motion pursuant to CPLR 3126 to strike the answer of the defendants City of New York and New York City Police Department, made on the ground of spoliation of physical evidence, and thereupon granted the plaintiff's motion.

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ROBERTO MORALES, res, v. CITY OF NEW YORK ap, NASCO, def-res, ET AL., def — (INDEX NO. 26575/05) In an action to recover damages for personal injuries, the defendants City of New York and New York City Police Department appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Velasquez, J.), dated February 28, 2013, as, upon renewal and reargument, in effect, vacated an order dated March 29, 2012, denying the plaintiff’s motion pursuant to CPLR 3126 to strike the answer of the defendants City of New York and New York City Police Department, made on the ground of spoliation of physical evidence, and thereupon granted the plaintiff’s motion.

ORDERED that the order dated February 28, 2013, is modified, on the law and in the exercise of discretion, by deleting the provision thereof, upon renewal and reargument, granting the plaintiff’s motion pursuant to CPLR 3126 to strike the answer of the defendants City of New York and New York City Police Department, made on the ground of spoliation of physical evidence, and substituting therefor a provision, upon renewal and reargument, granting that motion only to the extent of directing that a negative inference charge be given at the trial of this action with respect to the subject physical evidence and otherwise denying that motion; as so modified, the order dated February 28, 2013, is affirmed insofar as appealed from, without costs or disbursements.

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