SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT, NEW YORK
February 23, 1999
SHELDON GITLITZ, ET AL., PLAINTIFFS,
LATHAM PROCESS CORP., DEFENDANT-RESPONDENT, AMERIAN TYPE FOUNDERS-WEBB DIVISION, ETC., ET AL., DEFENDANTS-APPELLANTS, WEBB DRY MAINTENANCE SERVICE, ET AL., DEFENDANTS. WHITE CONSOLIDATED INDUSTRIES, INC., ET AL., THIRD PARTY PLAINTIFFS-APPELLANTS,
UNIVERSAL OFFSET CORP., THIRD PARTY DEFENDANT-RESPONDENT.
Rubin, J.p., Mazzarelli, Andrias, Saxe, JJ.
The opinion of the court was delivered by: Per Curiam Opinion
OPINION OF THE COURT
Order, Supreme Court, New York County (Alfred Toker, J.H.O.), entered September 30, 1998, which, in an action to recover for personal injuries sustained as a result of an allegedly defective product, denied defendants- appellants manufacturers' motion for summary judgment dismissing the answer and cross claims of respondents, unanimously affirmed, without costs. Appellants' contention that respondents' spoliation of evidence warrants dismissal of respondents' claims against them was properly rejected at this juncture. Appellants may well be able to obtain evidence necessary to prove an alteration from the original design, and otherwise establish their defense, from the inspection report and deposition of plaintiff's expert, who was given an opportunity to inspect the press before the action was commenced, and from their own blueprints and designs (cf., Kirkland v New York City Hous. Auth., 236 AD2d 170, 175; compare, Squitieri v City of New York, 248 AD2d 201, 203- 204). In addition, this motion was made 15 months after the note of issue and statement of readiness were filed.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 23, 1999
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