Madison Avenue Caviarteria 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 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 plaintiffs 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 plaintiffs spoliation of evidence, which was granted in an order of the same court dated March 20, 2001.

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 Ave. Caviarteria v Hartford Steam Boiler Inspection & Ins. Co. (306 AD2d 324 [2003] [decided herewith]); and it is further,

Ordered that the order is reversed insofar as reviewed, on the law, that branch of the plaintiffs 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 plaintiffs 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 Ave. Caviarteria v Hartford Steam Boiler Inspection & Ins. Co. (306 AD2d 324 [2003] [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 plaintiffs spoliation of evidence. Ritter, J.P., McGinity, Townes and Mastro, JJ., concur.