| Sienkiewicz v 370/CPW Owners Corp. |
| 2010 NY Slip Op 04768 [74 AD3d 781] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Cezary Sienkiewicz, Plaintiff, v 370/CPW Owners Corp.et al., Defendants/Third-Party Plaintiffs and Second Third-Party Plaintiffs-Respondents, et al.,Defendant, et al., Third-Party Defendants. Ryobi Technologies, Inc., et al., Second Third-PartyDefendants-Appellants. |
—[*1] Margaret G. Klein, New York, N.Y. (Herzfeld & Rubin, P.C. [David B. Hamm and Linda M.Brown], of counsel), for second third-party plaintiffs-respondents.
In an action, inter alia, to recover damages for personal injuries, the second third-partydefendants Ryobi Technologies, Inc., Ryobi Ltd., and One World Technologies, Inc., appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County (Ambrosio,J.), dated March 30, 2009, as denied that branch of their motion which was for summaryjudgment dismissing the second third-party complaint due to spoliation of evidence.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in denying the branch of theappellants' motion which was for summary judgment dismissing the second third-partycomplaint due to spoliation of evidence. "Generally, striking a pleading is reserved for instancesof willful or contumacious conduct . . . and the prejudice resulting from spoliationmust be considered in determining whether such drastic action is necessary as a matter ofelementary fairness" (Dean v UsineCampagna, 44 AD3d 603, 605 [2007]; De Los Santos v Polanco, 21 AD3d 397, 398 [2005]). In casesalleging design defects, such as this second third-party action, the loss of the specificinstrumentality that allegedly caused the plaintiff's injuries is not automatically prejudicial to themanufacturer thereof because defects will be exhibited by other products of the same design (see Lichtenstein v Fantastic Mdse.Corp., 46 AD3d 762 [2007]; Rios v Johnson V.B.C., 17 AD3d 654 [2005]; Lawson v Aspen Ford, Inc., 15 AD3d628 [2005]; Klein v Ford Motor Co., 303 AD2d 376 [2003]). Here, the appellantsfailed to show that the negligent loss or destruction of the table saw involved in the plaintiff'saccident severely prejudiced their ability to defend the second third-party action (see Awon v Harran Transp. Co., Inc.,69 AD3d 889 [2010]). Rivera, J.P., Florio, Angiolillo and Lott, JJ., concur.