| Positive Influence Fashions, Inc. v Seneca Ins. Co. |
| 2007 NY Slip Op 07060 [43 AD3d 796] |
| September 27, 2007 |
| Appellate Division, First Department |
| Positive Influence Fashions, Inc., Respondent, v SenecaInsurance Company, Appellant. |
—[*1] Weg & Myers, P.C., New York (Joshua L. Mallin of counsel), for respondent.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered March 13,2007, which, to the extent appealed from as limited by the briefs, denied so much of defendant'smotion as sought summary judgment dismissing the complaint or striking of the complaint onground of spoliation of evidence, unanimously affirmed, with costs.
Defendant did not sustain its burden of showing that plaintiff insured's allegedmisrepresentations were, in fact, willful and intentional (see Kyong Nam Chang v GeneralAcc. Ins. Co. of Am., 193 AD2d 521 [1993]). There is a question of fact at least as towhether plaintiff made its claim of near-total loss of goods to smoke damage in good faith afterpersons in the garment industry, as well as the public adjuster, opined that smoke damage to anyof the stock made all the goods in plaintiff's building unsaleable. Likewise, defendant did notshow, beyond any doubt as to the existence of a material issue of fact (Rotuba Extruders vCeppos, 46 NY2d 223, 231 [1978]), that disputes between plaintiff's president anddefendant's accountant amounted to an outright "refusal to provide requested informationmaterial and relevant to defendant's investigation of the claimed loss" (Latha Rest. Corp. v Tower Ins. Co., 38AD3d 321, 322 [2007], lv denied 9 NY3d 803 [2007]). Finally, regardless ofwhether some lesser sanction for spoliation of evidence might prove warranted in the future dueto plaintiff's disposal of documents at a time when defendant's counsel was seekingdocumentation, the extreme [*2]sanction of dismissal of thecomplaint is not warranted (see Marro v St. Vincent's Hosp. & Med. Ctr. of N.Y., 294AD2d 341 [2002]). Concur—Mazzarelli, J.P., Saxe, Friedman, Marlow and Williams, JJ.