Opinion
2002-01899
Argued February 10, 2003.
June 9, 2003.
In an action, inter alia, to recover damages for breach of contract and negligence, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Mason, J.), dated December 5, 2001, as denied those branches of its motion which were for leave to renew the separate motions of the defendants Hartford Steam Boiler Inspection Insurance Company, Emerson Electric Company/White-Rodgers Division, ABCO Refrigeration Supply Corp., Justin Time Refrigeration, Inc., and Miljoco Corporation to dismiss the complaint insofar as asserted against them based upon the plaintiff's spoliation of evidence, which were granted by order of the same court dated May 31, 2001, and that branch of the separate motion of the defendant TMP Acquisitions Co., Inc., which was to dismiss the complaint insofar as asserted against it based upon the plaintiff's spoliation of evidence, which was granted in an order of the same court dated March 20, 2001.
Drobenko Associates, P.C., Astoria, N.Y. (Walter Drobenko of counsel), for appellant.
Mound, Cotton, Wollan Greengrass, New York, N.Y. (Frederick R. Mindlin and David A. Nelson of counsel), and Day, Berry Howard, LLP, Hartford, Conn. (Ernest J. Mattei and Deborah S. Russo of counsel), for respondent Hartford Steam Boiler Inspection Insurance Company (one brief filed).
Malapero Prisco, LLP, New York, N.Y. (Raymond J. Malapero and Frank J. Lombardo of counsel), for respondent TMP Acquisitions Co., Inc.
Hoey, King, Toker Epstein, New York, N.Y. (Jeffrey Greenberg of counsel), for respondent ABCO Refrigeration Supply Corp.
Milber, Makris, Plousadis Seiden, LLP, Garden City, N.Y. (Audra S. Zane of counsel), for respondent Justin Time Refrigeration, Inc.
Quirk Bakalor, P.C., New York, N.Y. (Loretta A. Redmond of counsel), for respondent Emerson Electric Company, s/h/a Emerson Electric Company/White-Rogers Division.
Before: DAVID S. RITTER, J.P., LEO F. McGINITY, SANDRA L. TOWNES, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the appeal from so much of the order as denied those branches of the motion which were for leave to renew the separate motions of the defendants Hartford Steam Boiler Inspection Insurance Company, Emerson Electric Company/White-Rogers Division, ABCO Refrigeration Supply Corp., Justin Time Refrigeration, Inc., and Miljoco Corporation is dismissed as academic in light of our determination in Madison Avenue Caviarteria, Inc. v. Hartford Steam Boiler Inspection Insurance Company ( 306 A.D.2d 324 [Appellate Division Docket No. 2001-06760, decided herewith]); and it is further,
ORDERED that the order is reversed insofar as reviewed, on the law, that branch of the plaintiff's motion which was for leave to renew that branch of the motion of the defendant TMP Acquisitions Co., Inc., which was to dismiss the complaint insofar as asserted against it based upon the plaintiff's spoliation of evidence is granted, upon renewal, that branch of the motion of the defendant TMP Acquisitions Co., Inc., is denied, the order dated March 20, 2001, is vacated, so much of the judgment dated April 23, 2001, as was entered thereon, is vacated, and the complaint is reinstated insofar as asserted against that defendant; and it is further,
ORDERED that one bill of costs is awarded to the appellant.
For the reasons stated in Madison Avenue Caviarteria, Inc. v. Hartford Steam Boiler Inspection Insurance Company ( 306 A.D.2d 324 [Appellate Division Docket No. 2001-06760, decided herewith]), the Supreme Court improperly granted the motion of the defendant TMP Acquisitions Co., Inc., to dismiss the complaint insofar as asserted against it based upon the plaintiff's spoliation of evidence.
RITTER, J.P., McGINITY, TOWNES and MASTRO, JJ., concur.