Opinion
2003-00707.
Decided April 12, 2004.
In an action to recover damages for personal injuries, the defendant third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, J.), entered December 27, 2002, as, upon renewal, adhered to its prior determination in an order dated February 22, 2002, denying its motion, inter alia, to dismiss the complaint pursuant to CPLR 3126 based on spoliation of evidence.
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.
Before: GABRIEL M. KRAUSMAN, J.P., GLORIA GOLDSTEIN, THOMAS A. ADAMS, BARRY A. COZIER, JJ.
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.