On August 29, 2004, Darlene Fossing, the plaintiff in action Nos. 1 and 3, was a passenger on board a boat owned and operated by Anthony Christopher Pergolizzi, a defendant in action No. 1 and the plaintiff in action Nos. 2 and 4. During or upon completion of refueling of the boat at a marina operated by the Townsend Manor Inn, Inc. (hereinafter Townsend), a defendant in action Nos. 1 and 2, in Greenport, the boat caught fire. As a result of an explosion, or as a result of attempting to extinguish the fire, or as a result of both, Fossing and Pergolizzi allegedly sustained multiple burn injuries. Several months before the alleged accident, Ferrandino Son, Inc., and/or Ferrandino Son Environmental, Inc., the defendants in action Nos. 3 and 4, installed certain equipment at the marina pursuant to a contract with Townsend.
Although Pergolizzi conceded that he discarded the subject boat, despite a court order to maintain it for discovery and inspection, the appellants did not demonstrate that, as a result, they are "prejudicially bereft of the means of prosecuting" their own claims or of defending themselves against those claims brought against them by Fossing and Pergolizzi ( Weber v Harley-Davidson Motor Co., Inc., 58 AD3d 719, 722 [internal quotation marks omitted]; see Kirschen v Marino, 16 AD3d 555, 556). Therefore, the Supreme Court providently exercised its discretion in, inter alia, declining to strike Pergolizzi's complaints as a sanction for spoliation of evidence ( see Weber v Harley-Davidson Motor Co., Inc., 58 AD3d at 722; E.W. Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d 653, 654-655; Klein v Ford Motor Co., 303 AD2d 376, 377). A lesser sanction, however, was warranted, given the appellants' inability to attempt to establish from an inspection of the boat that the fire at issue was caused by some defect of the boat. Therefore, the Supreme Court should have granted those branches of the appellants' motion and cross motion which were to impose a sanction for the spoliation of evidence to the extent of directing Pergolizzi to disclose all of the information he has regarding the subject boat, including, among other things, any data, tests, and analyses he performed, precluding Pergolizzi from arguing or presenting evidence at trial that the subject boat was not the cause of the fire at issue, and directing that the appellants are entitled to an adverse inference charge as to the defective condition of the boat ( see Tapia v Royal Tours Serv., Inc., 67 AD3d 894; Weber v Harley-Davidson Motor Co., Inc., 58 AD3d at 722-723; Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717, 719; Yechieli v Glissen Chem. Co., Inc., 40 AD3d 988, 989).
We note that any contentions raised by Fossing on behalf of Pergolizzi have not been considered because her contentions are not properly before this Court.
The appellants' remaining contentions are without merit.