Opinion
May 27, 1986
Appeal from the Supreme Court, Orange County (Beisheim, J.).
Order entered June 3, 1985, affirmed.
The respondent is awarded one bill of costs payable by the appellant.
Special Term correctly determined that a sanction should be imposed upon the plaintiff pursuant to CPLR 3126, since the evidence established that the plaintiff was aware of the order of preservation and that he willfully ordered the destruction of the evidence sought to be preserved, and the plaintiff offered no reasonable explanation for his failure to comply with the order (see, Olshansky v Ravera, 107 A.D.2d 740; Ferraro v Koncal Assoc., 97 A.D.2d 429). In addition, the sanction imposed, although harsh, was not an abuse of discretion since the plaintiff's willful conduct effectively foreclosed the respondent from pursuing what may have been a meritorious and complete defense (see, Hyosung [Am.], Inc. v Woodcrest Fabrics, 106 A.D.2d 298, appeal dismissed 64 N.Y.2d 934).
The plaintiff's contention that CPLR 3126 is inapplicable since he was not bound by the order of preservation and was not a party to the action at the time the evidence was destroyed is without merit. Mollen, P.J., Thompson, Rubin and Lawrence, JJ., concur.