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REGALADO v. INDEPENDENT WELDING SUPPLY CORPORATION

289 A.D.2d 124 (2001)

735 N.Y.S.2d 40

RAFAEL REGALADO, Respondent, v. INDEPENDENT WELDING SUPPLY CORPORATION et al., Defendants, and ACETYLENE SUPPLY COMPANY, Also Known as ASCO, Appellant.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided December 18, 2001.

Appellant's argument that the action should be dismissed as against it because of plaintiff's failure to preserve the allegedly defective cylinder was properly rejected upon a record establishing that the cylinder was discarded or destroyed not by plaintiff but by the Police or Fire Department (see, Maliszewska v Potamkin N. Y. LP Mitsubishi Sterling, 281 A.D.2d 353) and that plaintiff's counsel unsuccessfully attempted to retrieve...

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