In Mangiaracina v. City of New York (14 Misc. 3d 1234(A), 14 Misc. 3d 1234A, 2007 NY Slip Op 50298U [Sup. Ct. Queens Cty. 2007], aff'd 55 A.D.3d 569 [2nd Dept. 2008]) the plaintiff, a police officer, had commenced a lawsuit alleging personal injuries sustained from an automobile accident involving a police car in which he was a passenger. The plaintiff in Mangiaracina alleged, inter alia, that the police car's air bags failed to deploy due to a defect. The plaintiff served a Notice of Claim approximately three months after the accident. Approximately seven weeks after plaintiff filed his notice of claim, the City sold the damaged vehicle in an auction. The purchaser subsequently sold the vehicle to a salvage company after using it for parts, depriving the parties of an opportunity to inspect the vehicle. General Motors ("GM"), a co-defendant, moved for dismissal of the plaintiff's complaint, or for summary judgment dismissing the City's cross-claims against GM based upon the spoliation of evidence. In denying the plaintiff's motion, the Hon. Phyllis Orlikoff Flug found that dismissal on the grounds of spoliation was unwarranted because (1) there was no evidence that the City sold the police car with ill intent; and (2) GM failed to establish that the City's conduct "fatally compromised its defense or left it without the means to defend the action" (2007 NY Slip Op 50298[U] at 2). With regard to the second point, Justice Flug noted that GM could pursue its defense by inspecting vehicles of the same make and model, inspection of photographs provided by the plaintiff, and inspection of maintenance and repair records of the vehicle provided by the City (id.). The court also noted that the City was equally prejudiced by the loss of the police car - another factor weighing against dismissing its cross-claims against GM (2007 NY Slip Op 50298[U] at 2-3) . Based upon the foregoing, Justice Flug denied GM's motion without prejudice to GM potentially moving for a "lesser sanction at the time of trial upon a showing of genuine prejudice" (2007 NY Slip Op 50298[U] at 3) .