Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered December 28, 2005. The order denied defendant's motion to dismiss the action on the ground of spoliation of evidence.

Order affirmed without costs.

Plaintiff commenced the instant action to recover as subrogee for damages sustained by its subrogors as a result of a leak from a boiler allegedly manufactured by defendant. The record reveals that after the leak, the subject boiler was disassembled and placed in plaintiff's subrogors' yard for over one year before it was ultimately disposed of by plaintiff's subrogors as part of their sale of the premises. About five months after the leak, the boiler was inspected by an engineer retained by plaintiff who concluded that the leak was due to a manufacturing defect. The instant action was commenced about one month before the boiler was discarded. Defendant appeals from the denial of its motion to dismiss the complaint on the ground of spoliation of evidence.

It is well settled that "[t]he determination of spoliation sanctions is within the broad discretion of the court" (Dennis v City of New York, 18 AD3d 599, 600 [2005]; Barahona v Trustees of Columbia Univ. in City of New York, 16 AD3d 445, 446 [2005]). "A party seeking a sanction pursuant to CPLR 3126 such as preclusion or dismissal is required to demonstrate that [*2]a litigant, intentionally or negligently, dispose[d] of crucial items of evidence . . . before the adversary ha[d] an opportunity to inspect them . . ., thus depriving the party seeking a sanction of the means of proving his claim or defense. The gravamen of this burden is a showing of prejudice" (Kirschen v Marino, 16 AD3d 555, 555-556 [2005] [emphasis added] [citations and internal quotation marks omitted]).

In the instant case, defendant's motion was supported solely by an affirmation from defendant's counsel and exhibits annexed thereto. Defendant did not proffer an affidavit from an expert or from defendant which demonstrated that defendant would be unable to prove its case without an actual inspection of the boiler. Since defendant's motion was based upon counsel's bare assertions and lacked any proof of prejudice, the denial of defendant's motion was proper (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Cameron v Nissan 112 Sales Corp., 10 AD3d 591 [2004]).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 03, 2007