BOYLE v. CITY OF NEW YORK

We deem defendant-appellants' motion for summary judgment to have been made on behalf of defendant Rodriguez as well as defendants Carro and Ibiza Restaurant, and find that the motion court properly refused to entertain it some 10 months after Rodriguez's answer had been reinstated (CPLR 3212[a]). The conditional sanction imposed on defendant Rodriguez for his failure to appear at deposition was also a proper exercise of discretion. Plaintiff's motion to sanction defendant City for spoliation of evidence or to compel disclosure concerning its destruction of certain sidewalk maintenance records was properly denied absent any evidence of impropriety in the destruction of 15-year-old records two years before plaintiff even requested them. Plaintiff's requests for certain charges to the jury were properly denied as premature.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.