That branch of Potamkin's motion seeking dismissal of the complaint for spoliation of evidence was properly denied where, notwithstanding plaintiff's diligence in commencing an action within two weeks of the accident, the co-defendant driver disposed of the offending vehicle before Potamkin had an opportunity to inspect the same. Plaintiff, who was prejudiced along with Potamkin by the vehicle's disposal, was in no way responsible for the complained of spoliation (see, Calbi v. Gen. Motors Corp., 204 A.D.2d 148). Moreover, Potamkin, having serviced the vehicle in the weeks immediately preceding the accident, is presumably in possession of any records necessary to defend against the claim its transmission repairs were negligently performed.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.