Madison Avenue Caviarteria, Inc. v. Hartford Steam Boiler Inspection & Insurance , 760 N.Y.S.2d 684 ( 2003 )

—In an action, inter alia, to recover damages for breach of contract and negligence, the defendant Justin Time Refrigeration, Inc., appeals from so much of a judgment of the Supreme Court, Kings County (Mason, J.), dated April 23, 2001, as dismissed its cross claims against the defendant TMP Acquisitions Co., Inc:

Ordered that the judgment is reversed insofar as appealed from, on the law, and the cross claims of Justin Time Refrigeration, Inc., against TMP Acquisitions Co., Inc., are reinstated; and it is further,

Ordered that one bill of costs is awarded to the appellant.

The Supreme Court erred in dismissing the cross claims of the defendant Justin Time Refrigeration, Inc. (hereinafter Justin Time), against the defendant TMP Acquisitions Co., Inc., as such relief was not requested. In any event, we note that the dismissal of the cross claims was apparently based on the dismissal of the complaint against Justin Time based on spoliation of evidence. In light of our reversal of the order of the Supreme Court granting the motion of Justin Time to dismiss the complaint insofar as asserted against it based on spoliation of evidence (see Madison Ave. Caviarteria v Hartford Steam Boiler Inspection & Ins. Co., 306 AD2d 324 [2003] [decided herewith]), we reinstate the cross claims. Ritter, J.P., McGinity, Townes and Mastro, JJ., concur.