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BARLOW v. WERNER COMPANY

295 A.D.2d 381 (2002)

743 N.Y.S.2d 731

DWIGHT BARLOW et al., Respondents, v. WERNER COMPANY, Defendant and Third-Party Plaintiff. POST EXTERMINATING COMPANY, INC., Third-Party Defendant-Appellant.

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

Decided June 10, 2002.

Ordered that the order dated May 23, 2001, is affirmed insofar as appealed from; and it is further,

Ordered that the order dated November 15, 2001, is affirmed; and it is further,

Ordered that one bill of costs is awarded to the respondents.

Because the plaintiffs' spoliation of evidence was unintentional and did not deprive the appellant of a means of establishing its defense, the Supreme Court providently exercised its discretion in granting the...

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