Behrbom v. Healthco International, Inc. , 727 N.Y.S.2d 916 ( 2001 )

—In an action to recover damages for personal injuries, etc., the defendant Healthco International, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Costello, J.), dated May 10, 2000, as granted that branch of the motion of the defendant Triweld Industries, Inc., which was to dismiss the cross claims of Healthco International, Inc., insofar as asserted against it, and the defendant Porter Instrument Company, Inc., separately appeals, as limited by its brief, from so much of the order as granted that branch of the motion of the defendant Triweld Industries, Inc., which was to dismiss the cross claims of Porter Instrument Company, Inc., insofar as asserted against it.

Ordered that the order is affirmed, without costs or disbursements.

In a companion appeal, we concluded that the plaintiffs’ loss of an allegedly defective nitrous oxide tank supplied by the defendant Triweld Industries, Inc. (hereinafter Triweld), prior to an inspection by Triweld, prejudiced its ability to defend against the plaintiffs’ claims and warranted dismissal of the complaint insofar as asserted against it (see, Behrbom v Healthco Intl., 285 AD2d 573 [décided herewith]). The appellants’ cross claims against Triweld are based on evidence obtained by the plaintiffs’ experts before the loss of the tank. Accordingly, the prejudice caused by the loss of the tank extends to the appellants’ cross claims as well, and the Supreme Court properly granted Triweld’s motion to dismiss the appellants’ cross claims.

The appellants’ remaining contentions are without merit. O’Brien, J. P., S. Miller, Schmidt and Cozier, JJ., concur.