Striking of a Cross Claim Based Upon Employer's Spoliation of Evidence

In DiDomenico v. C & S Aeromatik Supplies (supra), the Appellate Division, Second Department, approved the striking of an answer and cross claims based upon the employer's spoliation of all of the physical evidence thereby impairing the plaintiff employee's right to sue a third-party tortfeasor, and granted summary judgment to a codefendant because the employer also was responsible for the destruction of all the evidence by which the codefendant might have defended itself against the plaintiff's allegations. The Court granted the plaintiff employee's summary judgment motion on his common-law cause of action against his employee, as well as the defendant's summary judgment motion seeking indemnification from the employer, which is the relief sought here against General Accident. See also: Kirkland v. New York City Hous. Auth., 236 AD2d 170 [dismissal of third-party action appropriate where crucial evidence was negligently destroyed]; Mudge, Rose, Guthrie, Alexander & Ferdon v. Penguin Air Conditioning Corp., 221 AD2d 243 [dismissal of complaint warranted where plaintiff negligently lost key piece of evidence before defendants could examine it]; Sage Realty Corp. v. Proskauer Rose, 275 AD2d 11 [same]; New York Cent. Mut. Fire Ins. Co. v. Turnerson's Elec., 280 AD2d 652 [same].) Clearly, recognition of a viable spoliation of evidence claim is not anathema to the Second Department nor is invocation of such a claim against an employer by a stranger to the employer-employee relationship.