Thomas Manning et al., Respondents-Appellants, v. Ardsley Union Free School District, Appellant-Respondent, et al., Defendants

Thomas Manning et al., Respondents-Appellants, v Ardsley Union Free School District, Appellant-Respondent, et al., Defendants. [667 NYS2d 318] [MAJORITY] In a negligence action to recover damages for personal injuries, etc., the defendant Ardsley Union Free School District appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered June 19, 1996, as granted that branch of the plaintiffs’ motion which was to resolve in their favor the issue of the defendant Ardsley Union Free School District’s notice of the vicious propensities of the defendant Angelo Morano and to preclude the defendant Ardsley Union Free School District from contesting that issue. The plaintiffs cross-appeal, as limited by their brief, from so much of the same order as denied those branches of their motion which were to strike the answer of the defendant Ardsley Union Free School District and to resolve in their favor the issue of the inadequacy of the defendant Ardsley Union Free School District’s security and supervision. Ordered that the appeal from so much of the order as granted that branch of the plaintiffs’ motion which was to resolve in their favor the issue of the defendant Ardsley Union Free School District’s notice of the vicious propensities of the defendant Angelo Morano and to preclude the defendant Ardsley Union Free School District from contesting that issue is dismissed as academic, without costs or disbursements; and it is further, Ordered that the cross appeal from so much of the order as denied that branch of the plaintiffs’ motion which was to resolve in their favor the issue of the inadequacy of the defendant Ardsley Union Free School District’s security and supervision is dismissed as academic, without costs or disbursements; and it is further, Ordered that the order is affirmed insofar as cross-appealed from and reviewed, without costs or disbursements. The court properly denied that branch of the plaintiffs’ motion which was to strike the answer of the defendant Ardsley Union Free School District (hereinafter Ardsley). The court properly exercised its discretion in directing that the issues to which the disclosure information destroyed by Ardsley was relevant would be deemed resolved against Ardsley (see, CPLR 3126). However, in light of our determination in Manning v Ardsley Union Free School Dist. (246 AD2d 632 [decided herewith]), granting Ardsley’s motion for summary judgment dismissing the complaint insofar as asserted against it, the appeal and the remainder of the cross appeal are dismissed as academic. O’Brien, J. P., Pizzuto, Friedmann and Krausman, JJ., concur.