Blue Ridge Insurance v. Whirlpool Corp.

In a subrogation action to recover for property damage, the defendants appeal from an order of the Supreme Court, Suffolk County (Floyd, J.), dated February 6, 2002, which denied their motion for summary judgment dismissing the complaint, or to dismiss the complaint pursuant to CPLR 3126.

Ordered that the order is affirmed, with costs.

Under the circumstances of this case, the Supreme Court providently exercised its discretion in concluding that the drastic remedy of dismissal based upon spoliation of evidence was unwarranted (see Chiu Ping Chung v Caravan Coach Co., 285 AD2d 621). Moreover, there are issues of fact which preclude the granting of summary judgment. Ritter, J.P., Gold-stein, Luciano and Schmidt, JJ., concur.