HARTFORD FIRE INSURANCE COMPANY v. REGENERATIVE BUILDING CONSTRUCTION, INC.

• Decision Date: 20 April 2000
• Citation: HARTFORD FIRE INSURANCE COMPANY v. REGENERATIVE BUILDING CONSTRUCTION, INC., 271 A.D.2d 862, 706 N.Y.S.2d 236 (N.Y. App. Div. 2000)
• Parties: HARTFORD FIRE INSURANCE COMPANY, as Subrogee of LAWRENCE MARCELLE, Respondent,<BR>v.<BR>REGENERATIVE BUILDING CONSTRUCTION, INC., et al., Defendants, and ALLTEK ENERGY SYSTEMS, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

271 A.D.2d 862

706 N.Y.S.2d 236

HARTFORD FIRE INSURANCE COMPANY, as Subrogee of LAWRENCE MARCELLE, Respondent,

v.REGENERATIVE BUILDING CONSTRUCTION, INC., et al., Defendants, and ALLTEK ENERGY SYSTEMS, INC., Appellant.

Decided April 20, 2000.

Mercure, Crew III, Peters and Mugglin, JJ., concur.

Cardona, P. J.

Lawrence Marcelle retained defendantRegenerative Building Construction, Inc., a general contractor, to construct a new home in Saratoga County.Regenerative, in turn, subcontracted with defendantAlltek Energy Systems, Inc. to design and install the heating, air conditioning and ventilation system.Construction of the home was completed in August 1992.In January 1994, while Marcelle was out of town, water pipes in the basement of the residence apparently froze releasing steam and water and causing significant property damage.Marcelle was covered by a policy of insurance issued by plaintiff who paid $444,767.12 as a result of the loss.

In January 1997, plaintiff, acting as Marcelle's subrogee, commenced this action against Alltek and other defendants seeking to recover the money paid on the loss.Plaintiff alleged, inter alia, that the loss was attributable to the negligent design and installation of the heating system which failed to adequately provide heat to the basement area.Following joinder of issue, Alltek served a demand for discovery and inspection of the ruptured water line and attached valve leading to the basement sink as well as the water line leading to the washing machine.When plaintiff failed to produce the items, Alltek made a motion for summary judgment dismissing the complaint, pursuant to CPLR 3126, based upon plaintiff's alleged spoliation of critical evidence.Supreme Court denied the motion resulting in this appeal.

Initially, we note "that courts have discretion to impose sanctions under CPLR 3126 when a party intentionally, contumaciously or in bad faith fails to comply with a discovery order or destroys evidence prior to an adversary's inspection"(Puccia v Farley,261 AD2d 83, 85).Sanctions may also be appropriate in certain circumstances where a litigant negligently disposes of crucial items of evidence before the opposing party has had an opportunity to view them (see, Kirkland v New York City Hous. Auth.,236 AD2d 170, 173;Abar v Freightliner Corp.,208 AD2d 999, 1001).In deciding whether to impose sanctions in such a case, "courts will look to the extent that the spoliation of evidence may prejudice a party and...