DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion which was to preclude the defendant from offering certain testimony and evidence at trial is denied.
The plaintiffs commenced the instant action, inter alia, to recover damages for personal injuries allegedly sustained by the infant plaintiff when he was struck by a vehicle driven by the defendant. The defendant claimed that he lost control of his vehicle after a tire blew out. After the accident, the defendant's vehicle was towed from the scene and taken to the towing company's garage, where the towing company apparently disposed of the blown-out tire. Eventually, the plaintiffs moved, inter alia, to sanction the defendant for spoliation of evidence based upon their inability to examine the blown-out tire. The Supreme Court granted the motion "to the extent of precluding the defendant, at trial, from testifying and submitting into evidence any information regarding the tire." We reverse and deny that branch of the plaintiffs' motion.
The Supreme Court improvidently exercised its discretion in sanctioning the defendant for the spoliation of evidence. "Under the circumstances herein, it cannot be presumed that [the defendant] is the party responsible for the disappearance of such evidence or, more importantly, that it was discarded by [the defendant] in an effort to frustrate discovery" (Hartford Fire Ins. Co. v. Regenerative Bldg. Constr., 271 A.D.2d 862, 864; see McLaughlin v. Brouillet, 289 A.D.2d 461; Gallo v. Bay Ridge Lincoln Mercury, 262 A.D.2d 450; Popfinger v. Terminix Intl. Co. Ltd. Partnership, 251 A.D.2d 564). Moreover, we note that the defendant is also prejudiced by the loss of the tire.
PRUDENTI, P.J., FLORIO, FRIEDMANN and ADAMS, JJ., concur.