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Supreme Court, Appellate Division, Second Department, New York.

John CRANE, et al., plaintiffs, v. JAB REALTY, LLC, et al., defendants third-party and second third-party plaintiffs-appellants; Long Island Power Authority, third-party defendant-respondent; Keyspan Corporate Services, LLC, et al., second third-party defendants-respondents.

Decided: October 31, 2005

THOMAS A. ADAMS, J.P., DANIEL F. LUCIANO, PETER B. SKELOS, and ROBERT A. LIFSON, JJ. Baxter & Smith, P.C., Jericho, N.Y. (Valerie L. Nieves and Sim Shapiro of counsel), for defendants third-party and second third-party plaintiffs-appellants. Lewis Johs Avallone Aviles & Kaufman, LLP, Melville, N.Y. (Kerry Bassett of counsel), for third-party defendant-respondent and second third-party defendants-respondents.

In an action to recover damages for personal injuries, etc., the defendants third-party and second third-party plaintiffs, JAB Realty, LLC, and Touch of Class Car Wash, Inc., appeal from an order of the Supreme Court, Nassau County (Martin, J.), dated December 24, 2003, which granted the motion of third-party defendant Long Island Power Authority, and the second third-party defendants Keyspan Corporate Services, LLC, and Keyspan Corporation, d/b/a Keyspan Energy, pursuant to CPLR 3126 to dismiss the third-party complaint and the second third-party complaint, respectively, on the basis of spoliation of evidence, and denied their cross motion for summary judgment on the issue of common-law indemnification against the third-party defendant and the second third-party defendants.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the third-party defendant and the second third-party defendants, and substituting therefor a provision denying the motion;  as so modified, the order is affirmed, without costs or disbursements.

The injured plaintiff fell from a ladder owned by Touch of Class Car Wash, Inc. (hereinafter the Car Wash), while attempting to climb to the Car Wash roof to check the air-conditioning unit.   The injured plaintiff was working on assignment on behalf of Long Island Power Authority.   Immediately following the accident, the allegedly worn rubber foot of the ladder was replaced.   Following the plaintiffs' examination of the ladder and the commencement of third-party actions, but before the respondents could examine the ladder, the Car Wash disposed of the ladder.

Because the respondents were not prejudiced by the loss of the ladder, as it was not in the same condition as at the time of the accident, the Supreme Court improperly granted the motion to dismiss the third-party and second third-party complaints based upon spoliation of evidence (see Klein v. Ford Motor Co., 303 A.D.2d 376, 756 N.Y.S.2d 271;  Romano v. Scalia & DeLucia Plumbing, 280 A.D.2d 658, 721 N.Y.S.2d 245).

However, the court properly denied the appellants' cross motion for summary judgment on the issue of common-law indemnification as against the respondents because a triable issue of fact exists as to appellants' negligence (see Donnelly v. Treeline Cos., 13 A.D.3d 143, 785 N.Y.S.2d 691;  Clark v. Town of Scriba, 280 A.D.2d 915, 721 N.Y.S.2d 194;  Buccini v. 1568 Broadway Assoc., 250 A.D.2d 466, 673 N.Y.S.2d 398).

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