Palmatier v. Mr. Heater Corp.
| Decision Date | 21 December 2017 |
| Docket Number | 524050 |
| Parties | Sarah PALMATIER, Plaintiff, v. MR. HEATER CORPORATION et al., Appellants, and Star of India Fashions, Inc., et al., Respondents, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
156 A.D.3d 1167
68 N.Y.S.3d 530
Sarah PALMATIER, Plaintiff,
v.
MR. HEATER CORPORATION et al., Appellants,
and
Star of India Fashions, Inc., et al., Respondents, et al., Defendants.
524050
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: November 15, 2017
Decided and Entered: December 21, 2017
Carter, Conboy, Case, Blackmore, Maloney & Laird, PC, Albany (Edward D. Laird Jr. of counsel), for appellants.
Napierski, Vandenburgh, Napierski & O'Connor, LLP, Albany (Shawn T. Nash of counsel), for Star of India Fashions, Inc., respondent.
O'Connor, O'Connor, Bresee & First, PC, Albany (Carol E. Crummey of counsel), for Walmart Stores East, LP and others, respondents.
Lester Schwab Katz & Dwyer, LLP, New York City (Paul M. Tarr of counsel), for Macy's Inc. and others, respondents.
Before: Egan Jr., J.P., Rose, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
Rose, J.
Appeals (1) from an order of the Supreme Court (Gilpatric, J.), entered December 21, 2015 in Ulster County, which, among other things, denied a motion by defendants Mr. Heater Corporation, Enerco Group, Inc. and Tractor Supply Company to compel certain disclosure, and (2) from an order of said court, entered May 11, 2016 in Ulster County, which, among other things, denied said defendants' motion for leave to serve an amended answer.
Plaintiff suffered burns in 2009 when the dress and skirt she was wearing caught on fire as she stood next to an unvented propane heater. She commenced an action in 2011 seeking damages for her injuries, alleging, as is relevant here, that the skirt was distributed by defendant Star of India Fashions, Inc. and the heater was manufactured, designed and/or distributed by defendants Mr. Heater Corporation, Enerco Group, Inc. and Tractor Supply Company (hereinafter collectively referred to as the Enerco defendants). In their answer, the Enerco defendants asserted cross claims for contribution against, among others, Star of India. In 2012, plaintiff commenced a second action against, as pertinent here, the retailers where she believed that she may have purchased the skirt and dress. Although the two actions were consolidated in 2013, the Enerco defendants did not file a new answer asserting cross claims against the retailers.
During discovery, and after a series of depositions, the Enerco defendants demanded that Star of India produce an electronic copy of its "In Transit" database (hereinafter the database), which is a record of all of the styles, fabrics, colors, quantities and intended retailers of the items received by Star of India from its suppliers. When Star of India failed to comply, the Enerco defendants moved to compel disclosure of the entire contents of the database or, at least, its entire contents for the years 2004 to 2009. Star of India opposed the motion and cross-moved for a protective order. Ultimately, Supreme Court denied the Enerco defendants' motion and granted Star of India's cross motion. In 2016, the Enerco defendants also moved for leave to amend their answer to assert a cross claim for contribution against certain defendants who were named in the second complaint, including the retailers. Supreme Court denied that motion as well. The Enerco defendants now appeal from both orders.1
Turning first to the motion to compel, the Enerco defendants allege that the contents of the database will provide evidence as to whether Star of India distributed plaintiff's skirt and, thus, are material and necessary to the prosecution of their cross claim. We agree. CPLR 3101 mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action" ( CPLR 3101[a] ; see
Andon v. 302–304 Mott St. Assoc., 94 N.Y.2d 740, 746, 709 N.Y.S.2d 873, 731 N.E.2d 589 [2000] ; Kavanagh v. Ogden Allied Maintenance Corp., 92 N.Y.2d 952, 954, 683 N.Y.S.2d 156, 705 N.E.2d 1197...
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Palmatier v. Mr. Heater Corp.
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