New York City Transit Auth. v Consolidated Edison Co. of N. Y., Inc.

New York City Transit Auth. v Consolidated Edison Co. of N.Y., Inc. 2007 NY Slip Op 03852 [40 AD3d 273] May 3, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 11, 2007

New York City Transit Authority et al., Appellants,
v
Consolidated Edison Company of New York, Inc., Respondent, et al., Defendants.

—[*1] Canter Law Firm, P.C., White Plains (Nelson E. Canter of counsel), for appellants.

Richard W. Babinecz, New York (Helman R. Brook of counsel), for respondent.

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered August 25, 2006, which, in an action arising out of a fire on plaintiffs' premises allegedly caused by defendant-respondent improperly transmitting electrical test currents, granted defendant's motion for summary judgement dismissing the complaint on the ground of plaintiffs' spoliation of the "cable tray," unanimously affirmed, without costs.

Defendant adequately demonstrates that the cable tray was necessary to a proper investigation of the cause of the fire, and that the photographs of the fire site it was allowed to take were not an adequate substitute therefor (see Kirkland v New York City Hous. Auth., 236 AD2d 170, 173 [1997]). Accordingly, the complaint was properly dismissed as a sanction for plaintiffs having discarded the cable tray before it could be examined by defendant's experts (see id.). Concur—Friedman, J.P., Marlow, Sullivan, Sweeny and Catterson, JJ.