| Iamiceli v General Motors Corp. |
| 2008 NY Slip Op 04320 [51 AD3d 635] |
| May 6, 2008 |
| Appellate Division, Second Department |
| Wayne Iamiceli, Appellant, v General Motors Corporation,Respondent, et al., Defendant. |
—[*1] Lavin, O'Neil, Ricci, Cedrone & DiSipio, New York, N.Y. (Timothy J. McHugh of counsel),for respondent.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Putnam County (O'Rourke, J.), dated November 27, 2006, whichgranted that branch of the motion of the defendant General Motors Corporation which waspursuant to CPLR 3126 to preclude him, on the ground of spoliation of evidence, fromintroducing evidence in support of his strict products liability claim.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,and that branch of the motion of the defendant General Motors Corporation which was pursuantto CPLR 3126 to preclude the plaintiff, on the ground of spoliation of evidence, from introducingevidence in support of his strict products liability claim is denied.
The determination of spoliation sanctions is within the broad discretion of the court (see Denoyelles v Gallagher, 40 AD3d1027 [2007]; Dennis v City of NewYork, 18 AD3d 599, 600 [2005]; Barahona v Trustees of Columbia Univ. in City of N.Y., 16 AD3d445, 446 [2005]). However, under the circumstances, the Supreme Court improvidentlyexercised its discretion in sanctioning the plaintiff for the spoliation of evidence by precludinghim from introducing evidence in support of his strict products liability claim. The defendantGeneral Motors Corporation (hereinafter GM) failed to demonstrate that the loss of the subjectvehicle was the result of intentional or negligent destruction (see Cameron v Nissan 112 Sales Corp., 10 AD3d 591, 592 [2004];O'Reilly v Yavorskiy, 300 AD2d 456 [2002]). Furthermore, GM failed to establish that itwould be prejudiced in its defense as a result of the loss of the subject vehicle (see Cameron vNissan 112 Sales Corp., 10 AD3d at 592), which, the plaintiff [*2]alleges, was, inter alia, defectively designed (see Lichtenstein v Fantastic Mdse. Corp.,46 AD3d 762, 764 [2007];Lawson v Aspen Ford, Inc., 15 AD3d 628, 629 [2005]; Klein v Ford Motor Co.,303 AD2d 376, 377 [2003]). Lifson, J.P., Covello, Angiolillo and Leventhal, JJ., concur.