Citation Numbers： 20 A.D.3d 866, 798 N.Y.S.2d 622, 2005 N.Y. App. Div. LEXIS 7483
Judges： Gorski, Pine
Filed Date： 7/1/2005
Status： Precedential
Modified Date： 11/1/2024
Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered April 9, 2004 in a personal injury action. The order, insofar as appealed from, granted plaintiffs motion for leave to amend the complaint to assert direct causes of action against third-party defendant Tramz Hotels, Inc., doing business as Holiday Inn.
It is hereby ordered that the order insofar as appealed from be and the same hereby is reversed in the exercise of discretion without costs and the motion is denied.
Memorandum: Plaintiff commenced this action seeking damages for injuries that she sustained in the course of her employment while operating a clothes dryer manufactured by defendant Alliance Laundry Systems, LLC and sold to her employer by defendant USA Clean, formerly known as Frontier Supply & Equipment. Plaintiff asserted causes of action for strict products liability, breach of express and/or implied warranties, failure to warn and negligence. Those defendants then each commenced a third-party action against plaintiffs employer, Tramz Hotels, Inc., doing business as Holiday Inn (Tramz). Following discovery, plaintiff moved for leave to amend the complaint “to assert direct causes of action against Tramz . . . for spoliation of evidence, negligent impairment of ability to assert third-party claim, and breach of bailment.” In support of her motion, plaintiff alleged that Tramz destroyed evidence in contravention of a court order permitting further inspection. We conclude that Supreme Court improvidently exercised its discretion in granting the motion where, as here, the court has jurisdiction over the alleged spoliating party. Rather, if it is indeed established that Tramz improperly destroyed evidence, the court may impose such sanctions against Tramz as it deems appropriate (cf. Klein v Ford Motor Co., 303 AD2d 376, 377 [2003]; DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, 48-53 [1998]).
All concur except Gorski and Pine, JJ., who dissent and vote to affirm in the following memorandum: