| Fireman's Fund Ins. Co. v Sweeney & Harkin Carpentry & Dry WallCorp. |
| 2010 NY Slip Op 07889 [78 AD3d 650] |
| November 3, 2010 |
| Appellate Division, Second Department |
| Fireman's Fund Insurance Company, as Subrogee of Garden Place Trust,Respondent, v Sweeney & Harkin Carpentry & Dry Wall Corporation, Appellant. (And aThird-Party Action.) |
—[*1] Cozen O'Connor, P.C., New York, N.Y. (Guy A. Bell and John B. Galligan of counsel), forrespondent.
In a subrogation action to recover the proceeds of a home insurance policy, the defendant appealsfrom an order of the Supreme Court, Kings County (Schmidt, J.), dated April 28, 2009, which deniedits motion for summary judgment dismissing the complaint on the ground of spoliation of evidence.
Ordered that the order is affirmed, with costs.
"[W]hen a party negligently loses or intentionally destroys key evidence," the determination ofsanctions for spoliation of evidence is within the sound discretion of the trial court (Barahona v Trustees of Columbia Univ. in Cityof N.Y., 16 AD3d 445, 446 [2005] [internal quotation marks omitted]; see Gotto v Eusebe-Carter, 69 AD3d566, 567 [2010]; Andretta v Lenahan, 303 AD2d 527, 528 [2003]). A sanction is notwarranted in the absence of proof that the destruction of the evidence was willful or contumacious, thatthe lost evidence was central to the case, or that the movant was prejudiced thereby (see Awon v Harran Transp. Co., Inc., 69AD3d 889, 890 [2010]; Utica Mut. Ins.Co. v Berkoski Oil Co., 58 AD3d 717, 718 [2009]; Riley v ISS Intl. Serv. Sys., 304AD2d 637 [2003]; Klein v Ford Motor Co., 303 AD2d 376, 377 [2003]).
On its motion for summary judgment based on spoliation of evidence, the defendant failed toestablish its prima facie entitlement to judgment as a matter of law (see Alvarez v ProspectHosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562[1980]). Accordingly, the Supreme Court properly denied the defendant's motion for that relief.Skelos, J.P., Balkin, Chambers and Austin, JJ., concur.