—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 May 31, 2001, as granted those branches of 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 Corpоration which were to dismiss the complaint insofar as asserted against them based upon the plaintiff’s spoliation of evidence, and as failed to decide that branch of its cross motion which was for summary judgment on the issue of liability against the defendant Hartford Steam Boiler Inspection & Insurance Company.
Ordered that the appеal from so much of the order as failed to decide that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability against the defendant Hаrtford Steam Boiler Inspection & Insurance
Ordered that the order is reversed insofar as appealed from and reviewed, on the law, those branches of the motions which were to dismiss the complaint based upon the plaintiffs spоliation of evidence are denied, and the complaint is reinstated insofar as asserted against the defendants Emerson Electric Company/White-Rodgers Division, ABCO Refrigeration Supply Corp., Justin Time Refrigeration, Inc., Hartford Steam Boiler Inspection & Insurance Company, and Miljoco Corporation; and it is further,
Ordered that one bill of costs is awarded to the plaintiff payable by the respondents appearing separately and filing separate briefs.
The plаintiff is a retailer of caviar and other specialty foods. On July 24, 1997, it was discovered that approximately 4,400 pounds of caviar had spoiled in one of its walk-in refrigerator-freezer units (hereinafter the unit). That same day, Eric Sobol, a principal of the plaintiff, contacted the defendant Justin Time Refrigeration, Inc. (hereinafter Justin Time), the company responsible for service and repair of the unit, and the defendant Hartford Steam Boiler Inspection & Insurance Company (hereinafter Hartford), the plaintiffs insurer. According to Sobol, inspection and testing performed that day by Justin Time revealed that the temperature insidе the unit was 38 degrees, although the internal thermostat was set to maintain the temperature between 26 and 28 degrees, and an external thermometer providеd a false reading of 26 degrees. In an attempt to compensate, the thermostat was reset to maintain a lower temperature, but was raised again the following day after caviar was observed to be freezing.
On July 30, 1997, a claims examiner for Hartford inspected the unit in the presence of representаtives of the plaintiff and Justin Time, and a claims adjuster hired by the plaintiff. On July 31, 1997, Hartford asserted that its investigation did not reveal an insured event under the policy issued to the рlaintiff. On August 11, 1997, the plaintiff informed Hartford that it believed that the thermostat had failed, thereby causing the caviar inside the unit to spoil. On August 14, 1997, an independent laboratory hired by Hartford performed tests on the unit and prepared a report. By letter dated September 18, 1997, counsel for the plaintiff notified the defendant Emerson Electric Company/White-Rodgers Division (hereinafter Emerson), the manufacturer of the thermostat, of the loss. Counsel
On September 11, 1998, the plaintiff commenced this action, inter alia, to recover damages for breach of contract and negligence. The plaintiff alleged that the thermostat malfunctioned, as it did not maintain the temperature in the unit at the rеquired level to maintain the plaintiff’s product, and that it was unaware of the malfunction because the external thermometer also malfunctioned. In addition to naming Hartford, Justin Time, and Emerson as defendants, the plaintiff named TMP Acquisitions Co., Inc. (hereinafter TMP), the manufacturer of the unit, ABCO Refrigeration Supply Corp. (hereinаfter ABCO), the wholesaler of the unit, and Miljoco Corporation (hereinafter Miljoco), the alleged supplier or manufacturer of the external thermometer.
On April 16, 2000, after issue was joined as to all parties, the plaintiff, pursuant to a disclosure order, produced the thermostat it received on Novembеr 5, 1997, for testing by an independent laboratory. Through no fault of the plaintiff, testing did not occur at that time. Prior to any additional testing, it was determined that the thermostat рroduced by the plaintiff was in fact manufactured after the date of the loss and was not the thermostat at issue. Each defendant sought dismissal of the complaint insofar as asserted against it based on the plaintiff’s failure to preserve the thermostat, asserting that additional testing was necessary to establish defensеs and/or counterclaims. In opposition, Sobol asserted that the thermostat at issue was still in the unit and in use. Sobol stated that the confusion arose because he had been led to believe that the thermostat handed to him on November 5, 1997, which he had preserved during the pendency of the litigation, was the thermostаt at issue. In further support of their respective motions, the defendants Hartford, Justin Time, Emerson, ABCO, and Miljoco argued that dismissal of the complaint was none
“[W]here a party destroys essential physical evidence and the party seeking that physical evidence is ‘prejudicially bereft of appropriate means to confront a claim with incisive evidence,’ the spoliator may be sanctioned by the striking of its pleading” (Foncette v LA Express, 295 AD2d 471, 472 [2002], quoting New York Cent. Mut. Fire Ins. Co. v Turnerson’s Elec.,