Ashline v. Kestner Engineers, P.C., 1
| Decision Date | 22 September 1995 |
| Docket Number | No. 3,No. 2,No. 1,1,2,3 |
| Citation | 631 N.Y.S.2d 783,219 A.D.2d 788 |
| Parties | Paul D. ASHLINE, Sr. et al., Plaintiffs, v. KESTNER ENGINEERS, P.C. et al., Defendants and Third-Party Plaintiffs, and Schultz Construction, Inc. et al., Defendants and Third-Party Plaintiffs-Respondents-Appellants; City of Cohoes, Third-Party Defendant-Appellant-Respondent. (Action) Keith W. PHOENIX et al., Plaintiffs, v. KESTNER ENGINEERS, P.C. et al., Defendants and Third-Party Plaintiffs, and Schultz Construction, Inc. et al., Defendants and Third-Party Plaintiffs-Respondents-Appellants; City of Cohoes, Third-Party Defendant-Appellant-Respondent, et al., Third-Party Defendant. (Action) CITY OF COHOES, Appellant-Respondent, v. SCHULTZ CONSTRUCTION, INC. et al., Respondents-Appellants, et al., Defendants. (Action) |
| Court | New York Supreme Court — Appellate Division |
Bouck, Holloway, Kiernan & Casey (Christopher J. Kalil, of counsel), Albany, for City of Cohoes in action Nos. 1 and 2.
Williams & Clobridge P.C. (J. Richard Williams, of counsel), Albany, for City of Cohoes in action No. 3.
Cusick, Hacker & Murphy (Roger J. Cusick, of counsel), Latham, for Suburban Propane Gas Corporation.
Ryan, Orlando & Smallacombe (Melissa J. Smallacombe, of counsel), Albany, for Schultz Construction Inc.
Before CARDONA, P.J., and WHITE, CASEY and PETERS, JJ.
Cross Appeals from an order of the Supreme Court (Kahn, J.), entered April 22, 1994 in Albany County, which partially granted motions by defendants Schultz Construction, Inc. and Suburban Propane Gas Corporation to, inter alia, preclude the City of Cohoes from offering certain evidence at trial.
On July 7, 1989, a sewer pump station owned and operated by the City of Cohoes was destroyed as the result of an explosion. At the time the incident occurred, two of the City's employees were working inside the station and were severely injured. Several actions and third-party actions were commenced which were ultimately consolidated into the three present actions, the first two being the employees' personal injury suits and the third being the City's property damage suit. Among the defendants named in the actions were defendants Schultz Construction, Inc. and Suburban Propane Gas Corporation. It was alleged, inter alia, that these two defendants caused the explosion by reason of their negligence in installing and/or servicing the station's propane gas storage system and its connected piping. 1
Shortly after the explosion, and prior to any of the suits being commenced, the City and its insurance company conducted an investigation into the cause of the incident. As part of the investigation, an underground pipe was unearthed. The pipe was taken to the City garage and cut into sections. One of the sections contained holes or perforations. The experts hired to conduct the investigation examined and tested the pipe and their reports suggested that a lack of corrosion protection led to a leak in the pipe allowing propane to escape causing the explosion. According to one of the experts, shortly after the pipe was examined on July 18, 1989, he returned it to the office of the investigator who hired him to conduct the examination. The latter's office, however, denies ever having received possession of the pipe.
In February 1990, prior to his commencing suit in action No. 1, plaintiff Paul D. Ashline, Sr. moved to compel the City to preserve any and all physical evidence of the explosion. In March 1990, the items that the City had collected from the scene of the explosion were inventoried. The resulting list indicated that the pipe was in the insurance company's possession. In April 1990, Supreme Court granted Ashline's motion and at about the same time action No. 1 was commenced. Action No. 3 was commenced by the City in May 1990 and in August 1990, action No. 2 was commenced.
Thereafter, requests for discovery of the inventoried items, including the pipe, were made. In a letter from the City's attorney to one of the City's employees, dated June 25, 1991, it was noted that arrangements had been made for the inventoried items to be inspected at the City garage. The letter, however, noted that the pipe in question was not in the City's possession and that arrangements for its inspection were to be made with the party indicated on the inventory list. In July 1991, Suburban sought to examine the pipe, then supposedly in the possession of the State Insurance Fund, and discovered that it was unavailable. According to the City, it then made various inquiries in an attempt to locate the pipe but was ultimately unsuccessful in doing so. By letter dated December 24, 1991, the City offered to produce its experts for examination by all parties and, in March 1992, the deposition of one of the experts was taken. In addition, all parties were provided with complete copies of the experts' reports.
In September 1993, Suburban moved for an order dismissing the City's action against it in action No. 3 and for an order directing judgment in its favor against the City in the third-party actions in action Nos. 1 and 2. In the alternative, Suburban requested an order precluding the City from offering any evidence at trial pertaining to the missing section of pipe. Schultz then cross-moved for the same relief. Supreme Court, considering the circumstances, declined to grant...
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