Blue Ridge Insurance Co. v. Whirlpool Corp.

Full title: BLUE RIDGE INSURANCE COMPANY, ETC., respondent, v. WHIRLPOOL CORPORATION…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 13, 2003

302 A.D.2d 418 (N.Y. App. Div. 2003)

754 N.Y.S.2d 906

Opinion

2002-02745

Argued January 14, 2003.

February 13, 2003.

In a subrogation action to recover for property damage, the defendants appeal from an order of the Supreme Court, Suffolk County (Floyd, J.), dated February 6, 2002, which denied their motion for summary judgment dismissing the complaint, or to dismiss the complaint pursuant to CPLR 3126.

White, Fleischner Fino, LLP, New York, N.Y. (Jared T. Greisman of counsel), for respondent.

Leader Berkon, LLP, New York, N.Y. (Joshua K. Leader and Nall Miller, LLP [Mary A. Palma] of counsel), for appellants.

Before: DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.

DECISION ORDER

ORDERED that the order is affirmed, with costs.

Under the circumstances of this case, the Supreme Court providently exercised its discretion in concluding that the drastic remedy of dismissal based upon spoliation of evidence was unwarranted (see Chiu Ping Chung v. Caravan Coach Co., 285 A.D.2d 621). Moreover, there are issues of fact which preclude the granting of summary judgment.

RITTER, J.P., GOLDSTEIN, LUCIANO and SCHMIDT, JJ., concur.