CRUZ v. FOREMOST MACH. CORP

Citation Codes

Equivalent Citations

citation codes

Docket Number

2003-00707.

Attorney(S)

Perez, Furey Varvaro, Uniondale, N.Y. (Joseph Varvaro of counsel), for defendant third-party plaintiff-appellant. Godosky Gentile, P.C., New York, N.Y. (Richard Godosky and Brian J. Isaac of counsel), for plaintiff-respondent. Douglas J. Hayden, Melville, N.Y. (Alisa A. Ammerman of counsel), for third-party defendant-respondent.

See more information ...

Smart Summary

ALEJANDRO CRUZ, plaintiff-respondent, v. FOREMOST MACHINERY CORP., ET AL., defendants, LEESON ELECTRICAL CORP., defendant third-party plaintiff-appellant; DiNAPOLI RECYCLING COMPANY, INC., third-party defendant-respondent.

DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The Supreme Court properly denied the motion to dismiss the complaint. Although the appellant was prejudiced by the destruction of the subject machine, the plaintiff also was prejudiced thereby, and was not responsible for its spoliation ( see McLaughlin v. Brouillet, 289 A.D.2d 461; cf. Thornhill v. A.B. Volvo, 304 A.D.2d 651; Roman v. North Shore Orthopedic Assn., 271 A.D.2d 669). Thus, dismissal of the plaintiff's complaint was not warranted.

The appellant's remaining contentions are without merit ( see McAllister v. Renu Indus. Tire Corp., 202 A.D.2d 556).

KRAUSMAN, J.P., GOLDSTEIN, ADAMS and COZIER, JJ., concur.