CRUZ v. FOREMOST MACH. CORP

Appellate Division of the Supreme Court of New York, Second Department.

Apr 12, 2004

Judgment

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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.