Cohen Bros. Realty v. J.J. Rosenberg Elec. Contractors, Inc.

• Decision Date: 26 October 1999
• Citation: 697 N.Y.S.2d 20
• Parties: COHEN BROTHERS REALTY, et al., Plaintiffs-Respondents-Appellants, v. J.J. ROSENBERG ELECTRICAL CONTRACTORS, INC., Defendant-Appellant-Respondent/ Third-Party Plaintiff-Appellant, v. The Gap, Inc., Third-Party Defendant-Respondent/ Plaintiff-Appellant, v. J.J. Rosenberg Electrical Contractors, Inc., Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 20

697 N.Y.S.2d 20

COHEN BROTHERS REALTY, et al., Plaintiffs-Respondents-Appellants, v. J.J. ROSENBERG ELECTRICAL CONTRACTORS, INC., Defendant-Appellant-Respondent/ Third-Party Plaintiff-Appellant, v. The Gap, Inc., Third-Party Defendant-Respondent/ Plaintiff-Appellant, v. J.J. Rosenberg Electrical Contractors, Inc., Defendant-Respondent.

Supreme Court, Appellate Division, First Department, New York.

Oct. 26, 1999.

Chris Christofides, for Plaintiffs-Respondents-Appellants and Third-Party Defendant-Respondent/Plaintiff-appellant.

H. Nicholas Goodman, for Defendant-Appellant-Respondent/Third-Party Plaintiff-Appellant.

ELLERIN, P.J., ROSENBERGER, WILLIAMS, WALLACH and ANDRIAS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered November 19, 1998, which, in consolidated actions by a premises owner and premises occupant against an electrical contractor for property damage allegedly caused by defendant's negligent installation of a circuit breaker, granted defendant's motion to dismiss the action for spoilation of evidence only to extent of precluding plaintiffs from offering expert opinion on why they believe the fire did not start in a graphics printer, precluding plaintiffs from cross-examining the Fire Marshal who inspected the premises on why he reported that the fire did start in a graphics printer, and precluding plaintiffs from contradicting the Fire Marshal who inspected the premises with the testimony of his superior officer, and order, same court and Justice, entered December 2, 1998, which granted defendant's motion to quash a deposition subpoena served on the Fire Marshal who inspected the premises, unanimously affirmed, without costs.

Plaintiffs claim that the fire was caused by defendant's replacement, five days before the fire, of a 15 amp circuit breaker with a 20 amp circuit breaker that allowed a short in an extension cord underneath a desk to go unnoticed. A different cause is indicated in the report of the Fire Marshal who inspected the premises on the day of the fire, which opined that the fire started in a graphics printer that was not on the same line as the circuit breaker installed by defendant, and was one of two appliances that had been left on after hours in the office where the fire originated. The investigator for plaintiffs' insurance company, on a subsequent investigation, ruled out the printer as the cause of the fire, in part on the basis of his inspection of its internal mechanisms, and since he only kept evidence that he believed pointed to the cause and origin of the fire, the printer was discarded prior to the commencement of either action.

We agree with the motion court that plaintiffs' insurance investigator should have known that the Fire Department had investigated the fire,...