Opinion
Submitted May 5, 1999
June 14, 1999
In an action to recover damages for personal injuries based, inter alia, on negligent repair of an automobile, the defendant appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated September 10, 1998, which denied its motion for summary judgment dismissing the complaint.
Galvano Xanthakis, P.C., New York, N.Y. (Anthony Xanthakis and Steven F. Granville of counsel), for appellant.
Moskowitz Passman Edelman, New York, N.Y. (Thomas Torto of counsel), for respondent.
LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, GLORIA GOLDSTEIN, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The testimony demonstrated that the plaintiff's failure to preserve the destroyed automobile at issue was not intentional, and that the plaintiff did not obtain any unfair advantage from the failure to preserve it as evidence. As a result, the Supreme Court properly denied the defendant's motion for summary judgment based on the spoliation of that evidence, and properly declined to impose a sanction ( see, Popfinger v. Terminix Intl. Co. Ltd. Partnership, 251 A.D.2d 564; Prasad v. B.K. Chevrolet, 184 A.D.2d 626).
The Supreme Court properly determined that issues of fact exist as to whether the defendant negligently repaired the brakes, and whether those repairs rendered the brakes defective and proximately caused the accident ( see, Retz v. Alco Equip., 259 A.D.2d 898 [3d Dept., Mar. 11, 1999]; Mitchell v. Maguire Co., 151 A.D.2d 355, 356; Arslanian v. Volkswagen of America, Inc., 113 A.D.2d 858; see also, Rodolitz v. Boston-Old Colony Ins. Co., 74 A.D.2d 821).