Strelov v. Hertz Corp.
| Citation | 171 A.D.2d 420,566 N.Y.S.2d 646 |
| Parties | Annie STRELOV, Plaintiff-Respondent, v. The HERTZ CORPORATION, Defendant-Appellant. |
| Decision Date | 05 March 1991 |
| Court | New York Supreme Court — Appellate Division |
Before SULLIVAN, J.P., and ROSENBERGER, ROSS, ASCH and SMITH, JJ.
Order, Supreme Court, New York County (William J. Davis, J.), entered May 29, 1990, which granted plaintiff's motion pursuant to CPLR 3126 to preclude defendant from offering evidence on the issue of liability, unanimously modified, on the law, the facts and in the exercise of discretion, to limit the preclusion order only to possible defects in the automobile component parts that are no longer available for inspection, and otherwise affirmed, without costs.
Plaintiff was injured on October 31, 1986, when a rented automobile that she was driving, owned by the defendant Hertz, spun out of control and overturned. Upon her admission to the hospital, plaintiff reported that the accident was caused by a tire blowout. Hertz was notified of the accident by plaintiff's son, an attorney, who stated that he was representing the plaintiff, and that the accident may have been caused by a tire blowout.
In March, 1987, plaintiff commenced suit, represented by new counsel. In April, 1987, plaintiff asserted in her bill of particulars that Hertz was negligent in failing to properly inspect the car's steering and brakes. On March 22, 1988, plaintiff testified at an EBT that the car suddenly spun out of control, and while it was spinning she "could not move the wheel, it was a complete lock." On that same date, a Hertz representative testified that the car was in "an official legal hold status" and would remain so "until it is released from that legal hold status." At the conclusion of the EBT, plaintiff requested of defense counsel and the Hertz representative that the car remain in legal hold status, that plaintiff be given notice of any inspection by Hertz of the car's component parts, and that plaintiff be notified when the car would be available for inspection by the plaintiff. Hertz responded that those requests, and others, would be taken "under advisement."
On October 26, 1988, Hertz sold the automobile, except for the tires, at auction as salvage. Plaintiff was given no prior notice of this event, and at several subsequent appearances before a judicial hearing officer, at which discovery and inspection were discussed, plaintiff was not notified that the car was no longer...
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