Ferraro v. Koncal Associates
| Decision Date | 11 October 1983 |
| Citation | 97 A.D.2d 429,467 N.Y.S.2d 284 |
| Parties | Jaime FERRARO, an infant, etc., et al., Respondents, v. KONCAL ASSOCIATES, d/b/a Caldor's of Middletown, Inc., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Boeggman, George & Jannace, P.C., White Plains (George S. Hodges, White Plains, of counsel), for appellant.
Gurda, Gurda & McBride, Middletown (Grant W. Kelleher, Middletown, of counsel), for respondents.
Before DAMIANI, J.P., and GULOTTA, O'CONNOR and RUBIN, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, etc., defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Orange County, dated May 13, 1983, as, upon granting its motion to reargue, adhered to its original determination dated December 15, 1982, which granted plaintiffs' motion to preclude defendant from offering any evidence at trial in support of its defense.
Order affirmed insofar as appealed from, with costs.
Plaintiffs served a proper notice to permit entry on defendant's property, pursuant to subdivision (a) of CPLR 3120, for the purpose of inspecting clothes racks, including the glass clothes display rack which allegedly fell on the infant plaintiff and caused him to suffer severe injuries. It is uncontroverted that a date for said inspection was specified in the notice and then adjourned at defendant's request to August 24, 1982. Defendant refused to permit the entry and inspection after plaintiffs declined defense counsel's second request for an adjournment predicated on an alleged inability of counsel to attend said inspection. Such conduct, by itself, does not evince a willful refusal to disclose information warranting the imposition of the severe sanction of precluding defendant from proffering any evidence at trial with respect to any defenses (see Plainview Assoc. v. Miconics Inds., 90 A.D.2d 825, 455 N.Y.S.2d 835). However, in an unsigned affidavit by defense counsel in opposition to plaintiffs' motion to preclude, it was disclosed for the first time that the subject clothes rack had been discarded and was no longer available for inspection. Although a showing that it is impossible to make the particular disclosure will bar the imposition of a sanction under CPLR 3126, a contrary rule prevails where the disobedient party is responsible for making a previously possible disclosure impossible. Where a party deliberately destroys evidence, the penalties of CPLR 3126...
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Klein ex rel. Klein v. Seenauth
...of the notice, resulting in the imposition of an unconditional order of preclusion, pursuant to CPLR 3126 (See Ferraro v. Koncal Assoc., 97 A.D.2d 429, 467 N.Y.S.2d 284). Another case where a plaintiff's attorney delayed in revealing that the requested evidence was no longer available resul......
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DiDomenico v. C & S Aeromatik Supplies, Inc.
...N.Y.S.2d 498; Hyosung America v. Woodcrest Fabrics, 106 A.D.2d 298, 483 N.Y.S.2d 226). As this court wrote in Ferraro v. Koncal Assocs., 97 A.D.2d 429, 430, 467 N.Y.S.2d 284: "Although a showing that it is impossible to make [a] particular disclosure will bar the imposition of a sanction un......
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Walk & Smile, Inc. v. 2491 Atlantic Ave. Corp., 1
... ... Dee, 100 A.D.2d 504, 472 N.Y.S.2d 707; Ferraro v. Koncal Assoc., 97 A.D.2d 429, 467 N.Y.S.2d 284; Citizens Sav. & Loan Assn. of N.Y. v. New York ... ...
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Sawh v. Bridges
...makes a showing that the particular disclosure sought is not possible (see, Anteri v. NRS Constr. Corp., supra; Ferraro v. Koncal Assoc., 97 A.D.2d 429, 467 N.Y.S.2d 284). However, a contrary result obtains in cases "where the disobedient party is responsible for making a previously possibl......