Opinion
2011-10-18
Shan PALAKAWONG, Plaintiff,v.Marie LALLI, etc., et al., Defendants.Marie Lalli, et al., Third–Party Plaintiffs–Appellants,v.Edwin Perez, Third–Party Defendant–Respondent.Edwin Perez, Plaintiff–Respondent,v.A.J. Lalli, et al., Defendants–Appellants,Shan Palakawong, Defendant.
O'Connor, McGuinness, Conte, Doyle & Oleson, White Plains (Elizabeth Holmes of counsel), for appellants.Goldman & Grossman, New York (Eleanor R. Goldman of counsel), for respondent.
O'Connor, McGuinness, Conte, Doyle & Oleson, White Plains (Elizabeth Holmes of counsel), for appellants.Goldman & Grossman, New York (Eleanor R. Goldman of counsel), for respondent.
Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered on or about June 25, 2010, which, in related personal injury actions arising from a motor vehicle accident, denied the Lallis' motion to dismiss Perez's action and any of Perez's claims and defenses in the third-party action or to issue other sanctions for Perez's spoliation of his motorcycle, unanimously modified, on the law and the facts, to grant the motion to the extent of precluding Perez from presenting evidence at trial as to the condition of his motorcycle after the accident, without prejudice to seeking an adverse inference change at trial, and otherwise affirmed, without costs.
The Lallis may rely on evidence other than Perez's motorcycle to prove that they did not cause the motor vehicle accident, including the police accident report and their insurer's inspections of other vehicles involved in the accident. Thus, Supreme Court providently exercised its discretion in denying that part of the Lallis' motion seeking to dismiss Perez's action ( see Tommy Hilfiger, USA v. Commonwealth Trucking, 300 A.D.2d 58, 60, 751 N.Y.S.2d 446 [2002] ). However, a lesser sanction is warranted given Perez's intentional alteration of his motorcycle ( see Kugel v. City of New York, 60 A.D.3d 403, 873 N.Y.S.2d 630 [2009]; Rodriguez v. 551 Realty LLC, 35 A.D.3d 221, 221, 826 N.Y.S.2d 234 [2006] ).