In this action, plaintiff seeks damages for personal injuries allegedly sustained in a motor vehicle accident on October 12, 2003, during the course of his employment as a police officer, when the vehicle in which he was a passenger, manufactured by defendant GM, was struck head-on by a vehicle operated by defendant Jerry Ochoa. Plaintiff alleges, inter alia, that his airbag was defective because it failed to deploy.

On or about January 9, 2004, plaintiff served a notice of claim upon defendant City. On February 25, 2004, defendant City sold the subject police vehicle at auction. Plaintiff served a summons and complaint upon defendants City, GM and Ochoa on or about January 13, 2005. [*2]Defendant City served its answer with cross claims against defendants GM and Ochoa on or about March 14, 2005. Defendant GM served its answer with cross claims against defendants City and Ochoa on or about April 11, 2005.

Defendant GM now seeks dismissal of plaintiff's complaint for failure to preserve the subject police vehicle or for summary judgment in its favor dismissing the cross claims of defendant City against it for failure to preserve said vehicle. In support of its motion, defendant GM submits, inter alia, an affidavit of its investigator who avers that he located the individual who purchased the subject police vehicle at auction. According to the investigator, said individual informed him that he used the vehicle for parts and then sold the vehicle to a salvage company. Defendant GM also submits the affidavit of its employee, a field performance assessment engineer, who avers that the subject vehicle, a 2000 Chevrolet Impala, is equipped with a Sensing Diagnostic Module which monitors the airbag system, deploys the airbags and records airbag system data. Defendant GM contends that since the subject police vehicle and the airbag system data stored on its Sensing Diagnostic Module are unavailable for inspection and review, defendant GM is deprived of the ability to establish its defense.

Where a party intentionally or negligently destroys essential physical evidence which severely prejudices an adversary, the offending party may be sanctioned by having its pleading stricken. (See Olexa v Jacobs, ___ AD3d ___, 2007 NY Slip Op 505 [2d Dept, Jan. 23, 2007]; see also Baglio v St. John's Queens Hospital, 303 AD2d 341 [2003].) The apparent harshness of this rule, however, has been mitigated in cases where the lost evidence is not essential to the opponent's case or its destruction is not prejudicial. In such circumstances, a lesser sanction, or no sanction at all, may be appropriate (see Klein v Ford Motor Co., 303 AD2d 376 [2003]), and the court retains broad discretion in determining how to proceed. (See De Los Santos v Polanco, 21 AD3d 397 [2005].) The court will look closely to see if the destruction was an intentional effort to frustrate discovery, as well as, whether destruction took place after discovery was demanded. (See e.g. O'Reilly v Yavorskiy, 300 AD2d 456 [2002].) Alternatively, the court may find that the evidence was discarded or lost by a party without any ill intent, or that the loss of evidence is equally if not more prejudicial to the party answerable for the loss. (See O'Reilly v Yavorskiy, supra; see also McLaughlin v Brouillet, 289 AD2d 461 [2001]; Popfinger v Terminix International Co. Limited Partnership, 251 AD2d 564 [1998].) In such cases, a court may find that no sanction is warranted. (See Klein v Ford Motor Co., supra; see also O'Reilly v Yavorskiy, supra.)

The court finds that the circumstances of this case fall into the latter category. The subject police vehicle was sold by defendant City without any ill intent and prior to any disclosure demands. In addition, the drastic remedy of dismissing defendant City's cross claims against defendant GM is not warranted as defendant GM failed to establish that defendant City's conduct fatally compromised its defense or left it without the means to defend the action. (See Lawson v Aspen Ford, Inc., 15 AD3d 628 [2005]; see also Ifraimov v Phoenix Industrial Gas, LLC, 4 AD3d 332 [2004]; Chiu Ping Chung v Caravan Coach Co., 285 AD2d 621 [2001].) Defendant GM may inspect vehicles of the same year and model as the subject vehicle. Also, plaintiff has provided photographs and defendant City has provided maintenance and repair records of the subject vehicle. Finally, defendant City is equally prejudiced by the loss of the evidence in question. (See [*3]De Los Santos v Polanco, supra; see also Lawson v Aspen Ford, Inc., supra; O'Reilly v Yavorskiy, supra.)

Accordingly, the branch of defendant GM's motion for summary judgment dismissing defendant City's cross claims against it for failure to preserve the subject vehicle is denied without prejudice to defendant GM's moving for the imposition of a lesser sanction at trial upon a showing of genuine prejudice. (See Cameron v Nissan 112 Sales Corp., 10 AD3d 591 [2004]; see also Klein v Ford Motor Co., supra; Chiu Ping Chung v Caravan Coach Co., supra.)

The branch of defendant GM's motion to dismiss plaintiff's complaint as against it for failure to preserve the subject vehicle is denied as plaintiff, who was prejudiced along with defendants GM and City by the vehicle's disposal, was not responsible for the complained of spoilation. (See McLaughlin v Brouillet, supra.) Moreover, although sanctions may be imposed for negligent destruction of evidence, the imposition of sanctions against plaintiff is inappropriate here.

Dated: January 30, 2007

J.S.C.