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Travelers Indemnity Co. v. C.C. Controlled Combustion Insulation Co.11/19/2003
This opinion is uncorrected and will not be published in the Official Reports.
Evidence--Loss or Destruction of Evidence
(*1)
DECISION
Motion and Cross-Motion for Summary Judgment
In deciding these motions the court considered the following documents:
(*2) Notice of Motion and annexed Affidavits and Affirmations
Exhibits
Cross-Motion and annexed Affidavits and Affirmations
Motion in Opposition
Memoranda in Support and in Opposition to the Motion
The incident that gave rise to this action occurred on or about January 27, 2000, in the boiler room of the subrogor school when the automatic cold water feeder line of the boiler allegedly malfunctioned causing the boiler to overflow. The boiler had been installed by Defendant C.C. Controlled Combustion Company, Inc. ("Controlled") three days earlier on January 24, 2000.
Pursuant to the contract entered into by the subrogor school and Controlled, Controlled agreed to install one McDonnell-Miller Automatic Water Feeder. The day after the incident in question, a technician from Controlled responded to a call for service due to the flooding in the school. In his report the technician identified the water feeder as model number 101. On January 28, 2000, Controlled removed and replaced the subject boiler.
In April of 2002, Plaintiff first advised ITT that it was seeking reimbursement for amounts paid to its subrogor. Plaintiff's counsel advised ITT that it had received a letter (*3)from Controlled's insurance carrier stating that the damage to the school was caused by a malfunction in the boiler's automatic feeder, which was allegedly manufactured by ITT.
In response to Plaintiff's counsel's letter, ITT advised Plaintiff on May 6, 2002, that, in order to consider the claim, it would have to test the allegedly malfunctioning feeder at its plant. Plaintiff requested the feeder from Controlled, but it was never produced.
In December, 2002, Plaintiff instituted this instant action against Controlled and ITT Industries ("ITT") (incorrectly sued as ITT McDonnell and Miller), alleging manufacturing and/or design defects, negligence, and breach of various warranties on the part of Controlled and ITT.
After this action was commenced, ITT served a Notice to Preserve on all parties on February 11, 2003. In March of 2003, ITT was notified that the feeder in question was no longer in the custody or control of Controlled, and its whereabouts was unknown. ITT filed this motion for summary judgment based on spoliation of evidence. Plaintiff cross-moved for summary judgment and striking Controlled's answer, also founded on the theory of spoilation of key evidence.
Spoliation is the destruction or significant alteration of evidence, or the failure to (*4)preserve property for another's use as evidence in pending or reasonably foreseeable litigation. West v. Goodyear Tire & Rubber Co., 167 F. 3d 776 (2d Cir. 1990). Penalties for a refusal to comply with disclosure requests are provided for in section 3126 of the CPLR. That section allows for such sanctions as:
a) having the matter resolved against the party who destroyed or failed to preserve the significant evidence [section 3126 (1)],
b) prohibiting the disobedient party from supporting or opposing claims based on such spoliated evidence [section 3126 (2)], or
c) striking the pleadings of the disobedient party [section 3126 (3)].
The determination of an appropriate sanction for spoliation, if any, is confined to the sound discretion of the cou
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