Cohen Brothers Realty v. JJ ROSENBERG ELECTRICAL CONTRACTORS, INC.
| Decision Date | 26 October 1999 |
| Citation | 265 A.D.2d 242,697 N.Y.S.2d 20 |
| Parties | COHEN BROTHERS REALTY et al., Respondents-Appellants,<BR>v.<BR>J.J. ROSENBERG ELECTRICAL CONTRACTORS, INC., Appellant-Respondent and Third-Party Plaintiff-Appellant.<BR>THE GAP, INC., Third-Party Defendant-Respondent and Appellant,<BR>v.<BR>J.J. ROSENBERG ELECTRICAL CONTRACTORS, INC., Respondent. |
| Court | New York Supreme Court — Appellate Division |
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, and, had he made inquiry, would have learned that the printer had been identified as a likely cause of the fire. As the motion court indicated, if plaintiffs' investigator had ruled out the printer as a cause of the fire, and if, as represented, he only preserves evidence arguably relevant to the issues of origin and causation, he should have saved the printer, not merely the cord that was attached to the printer.
Plaintiffs' investigator also should have known that, as a result of his report, defendant would be identified as a potential defendant for having negligently installed a 20 amp circuit breaker, and that defendant would want the same opportunity as he had to inspect the internal mechanisms of apparatus that had been left on after hours. Accordingly, the motion court correctly held that plaintiffs' investigator was negligent in failing to preserve the printer.
We also agree with the motion court that the unavailability of the printer substantially hinders defendant's...
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