Campbell v. Tracey Road Equipment, Inc.

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when the truck he was driving failed to negotiate a curve and flipped over. Plaintiff had taken the truck to defendant for a front-end alignment on the morning of the accident, and plaintiff alleged that defendant’s negligent repair caused the accident. In particular, plaintiff alleged that certain bolts were improperly torqued and that a center axle pin was sheared. After the accident, plaintiff had the truck inspected by his insurance agent and later repaired but failed to preserve the replaced bolts and center axle pin. Supreme Court erred in dismissing the complaint based on plaintiffs failure to preserve that evidence. We agree with the court that the unavailability of the bolts and center axle pin hinders defendant’s ability to prove an alternate cause of the accident (see generally, CPLR 3126). We conclude, however, that dismissal of the complaint was too drastic a sanction in the circumstances of this case and that defendant instead is entitled to an adverse inference charge with respect to the missing evidence. Consequently, we modify the order by reinstating the complaint and imposing the sanction of an adverse inference charge with respect to plaintiffs failure to preserve the replaced bolts and center axle pin. (Appeal from Order of Supreme Court, Oswego County, Nicholson, J. — Reargument.) Present — Pigott, Jr., P. J., Wisner, Hurlbutt, Kehoe and Lawton, JJ.