Puccia v. Farley

• Decision Date: 09 December 1999
• Citation: 699 N.Y.S.2d 576,261 AD2d 83
• Parties: 1999 N.Y. Slip Op. 10,536 Lawrence PUCCIA et al., Appellants, v. Kevin FARLEY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 576

699 N.Y.S.2d 576

1999 N.Y. Slip Op. 10,536

Lawrence PUCCIA et al., Appellants, v. Kevin FARLEY, Respondent.

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

Dec. 9, 1999.

Cozen & O'Connor (Jeffrey L. Nash of counsel), New York City, for appellants.

Saperston & Day P.C. (Gary H. Abelson of counsel), Rochester, for respondent.

Before: MERCURE, J.P., PETERS, SPAIN, CARPINELLO and GRAFFEO, JJ.

PETERS, J.

Appeal from an order of the Supreme Court (Demarest, J.), entered October 6, 1998 in St. Lawrence County, which granted defendant's motion to dismiss the complaint for failure to comply with discovery demands.

Plaintiffs purchased a wood-burning stove which was installed in their home by defendant in October 1993. On January 11, 1995, plaintiff Valerie Puccia detected a fire in the vicinity of the wood-burning stove. The fire was successfully extinguished by the local fire department, but the extent of the damage required plaintiffs to leave the premises for the evening. In the early morning hours of January 12, 1995, the fire rekindled. This second fire resulted in the complete destruction of the residence, with the stove and chimney collapsing into the basement. Fire Chief Kit Smith and his assistant conducted an investigation after the first fire; photographs of the damage as it then existed were taken by both the fire department and local newspapers. Smith concluded that the fire started in the wood/stucco area surrounding the stove and chimney because of an improper placement of wood studs during its installation.

Plaintiffs' insurance carrier retained Intricate Investigative Services after the second fire. After viewing, inter alia, the remains of the wood-burning stove, the chimney, the metal grate, the chimney pipes, the stucco-covered chicken wire and the wood studs, Intricate's investigative report, dated January 17, 1995, concluded that the fire was caused by the negligent installation of the wood-burning stove, with no evidence of a manufacturing defect. It concluded, after having eliminated "all other natural and accidental sources of ignition * * * in the area of origin * * * that subrogation may exist". Shortly thereafter, plaintiffs' agent arranged for a demolition contractor to dispose of the fire debris.

By letter dated February 28, 1995, plaintiffs communicated their notice of claim directly to defendant. Unable to resolve the issue, plaintiffs commenced this action in December 1996 alleging that the negligent installation of the wood-burning stove caused the fire. Al Lewis, a certified investigator hired by defendant, reviewed the report of the local fire department, news articles, Intricate's report, photographs taken after the first fire and various manuals and statements. Finding the photographs to be an inadequate substitute for an actual inspection of the stove due to their failure to accurately depict the proximity of the wood studs to the pipes, he contended that although there was a possibility of a chimney fire or product defect, he could not conclusively state his opinion without a physical inspection of the pipes for creosote build-up or leaks.

Defendant thereafter moved to dismiss the complaint pursuant to CPLR 3126 due to plaintiffs' destruction of evidence crucial to the underlying action despite its knowledge that a viable claim for subrogation existed. Supreme Court granted defendant's motion, finding that a less restrictive alternative could not be found. Plaintiffs appeal.

It is by now well settled 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 (see, e.g., Matthews v. McDonald, 241 A.D.2d 808, 661 N.Y.S.2d 80; Matter of Cullen, 143 A.D.2d 746, 533 N.Y.S.2d 454). We have agreed that such sanctions might even be appropriate for the negligent disposal of evidence deemed crucial to the underlying action when the adversary had not been given an opportunity for inspection (see...