Opinion
910
April 22, 2003.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered March 1, 2002, which, to the extent appealed from as limited by the briefs, granted defendant Sharp Electronics Corporation's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
John J. Basso, for plaintiff-appellant.
Mitchell S. Cohen, for defendant-respondent.
Before: Tom, J.P., Saxe, Williams, Lerner, Marlow, JJ.
In view of the loss of key evidence that defendant never had an opportunity to examine, the court properly granted summary judgment as a sanction for spoliation (see Mudge, Rose, Guthrie, Alexander Ferdon v. Penguin Air Conditioning Corp., 221 A.D.2d 243). Plaintiff made no showing that defendant was on notice that he intended to commence litigation until one year following the accident. Although he was aware the television that allegedly caused the injury was a crucial piece of evidence, he negligently failed to take sufficient steps to assure its preservation. The spoliation was clearly the result of plaintiff's negligence notwithstanding the fact that the television set was owned by plaintiff's employer, a nonparty (compare Maliszewska v. Potamkin New York LP Mitsubishi Sterling, 281 A.D.2d 353). Defendant did nothing to contribute to the loss of the evidence, and its unavailability for examination and analysis was highly prejudicial (see Squitieri v. City of New York, 248 A.D.2d 201, 203).
In any event, plaintiff failed to offer sufficient evidence that the television set which injured him was manufactured by defendant, as is required to maintain a product liability action (see Healey v. Firestone Tire Rubber Co., 87 N.Y.2d 596, 601). Plaintiff, who was injured while working in an appliance store, did not personally know which of various brands of televisions caused his injuries, and he did not provide competent evidence to establish a "reasonable probability" (id.) that defendant manufactured the television in question.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.