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CRUZ v. FOREMOST MACHINERY CORP.

6 A.D.3d 484 (2004)

774 N.Y.S.2d 414

ALEJANDRO CRUZ, Respondent, v. FOREMOST MACHINERY CORP. et al., Defendants, and LEESON ELECTRICAL CORP., Defendant and Third-Party Plaintiff-Appellant. DINAPOLI RECYCLING COMPANY, INC., Third-Party Defendant-Respondent.

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

April 12, 2004.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs.

The Supreme Court properly denied the motion to dismiss the complaint. Although the appellant was prejudiced by the destruction of the subject machine, the plaintiff also was prejudiced thereby, and was not responsible for its spoliation (see McLaughlin v Brouillet, 289 A.D.2d 461 [2001]; cf. Thornhill v A.B. Volvo,

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