Gallo v. Bay Ridge Lincoln Mercury, Inc.

—In an action to recover damages for personal injuries based, inter alia, on negligent repair of an automobile, the defendant appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated September 10, 1998, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The testimony demonstrated that the plaintiffs failure to preserve the destroyed automobile at issue was not intentional, and that the plaintiff did not obtain any unfair advantage from the failure to preserve it as evidence. As a result, the Supreme Court properly denied the defendant’s motion for summary judgment based on the spoliation of that evidence, and properly declined to impose a sanction (see, Popfinger v Terminix Intl. Co. Ltd. Partnership, 251 AD2d 564; Prasad v B.K. Chevrolet, 184 AD2d 626).

The Supreme Court properly determined that issues of fact exist as to whether the defendant negligently repaired the brakes, and whether those repairs rendered the brakes defective and proximately caused the accident (see, Retz v Alco Equip., 259 AD2d 898; Mitchell v Maguire Co., 151 AD2d 355, 356; Arslanian v Volkswagen of Am., 113 AD2d 858; see also, Rodolitz v Boston-Old Colony Ins. Co., 74 AD2d 821). Bracken, J. P., Thompson, Goldstein, McGinity and Schmidt, JJ., concur.