HOAG v. CHASE PITKIN HOME AND GARDEN CENTER

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

Peggy J. HOAG and Jeffrey Hoag, Plaintiffs-Appellants-Respondents, v. CHASE PITKIN HOME AND GARDEN CENTER, Defendant-Respondent-Appellant.

Decided: December 30, 1999

PRESENT:  GREEN, J.P., LAWTON, PIGOTT, JR., HURLBUTT and CALLAHAN, JJ. George A. Schell, Rochester, for plaintiffs-appellants-respondents. James E. Maslyn, Rochester, for defendant-respondent-appellant.

Plaintiff Peggy J. Hoag was injured on July 23, 1992 when she was struck by a display board that came loose from its brackets and fell from a shelf in defendant's store.   Plaintiffs commenced this negligence action in March 1995.   The display board had been repaired and rehung shortly after the accident, and then removed and destroyed when, in January 1994, defendant stopped selling the brand of floor tile displayed on the board.

 Supreme Court properly denied plaintiffs' motion for summary judgment on liability as a sanction for defendant's destruction of the display board.   “In the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices” (Conderman v. Rochester Gas & Elec. Corp., 262 A.D.2d 1068, 1070, 693 N.Y.S.2d 787;  see, Schidzick v. Lear Siegler, Inc., 222 A.D.2d 841, 842, 635 N.Y.S.2d 323;  cf., Squitieri v. City of New York, 248 A.D.2d 201, 669 N.Y.S.2d 589;  Mudge, Rose, Guthrie, Alexander & Ferdon v. Penguin Air Conditioning Corp., 221 A.D.2d 243, 633 N.Y.S.2d 493).   Plaintiffs are not prevented from establishing a prima facie case (see, Berwecky v. Montgomery Ward, Inc., 214 A.D.2d 936, 937-938, 625 N.Y.S.2d 725, lv. dismissed 86 N.Y.2d 837, 634 N.Y.S.2d 445, 658 N.E.2d 223), and, as previously noted by this Court on a prior appeal (Hoag v. Chase Pitkin Home & Garden Ctr., 252 A.D.2d 953, 954, 675 N.Y.S.2d 724), plaintiffs also may pursue nonparty disclosure against the tile company.

 Finally, the court did not abuse its discretion in directing defendant and its liability insurer to produce all reports, notes and memoranda concerning the display board and any photographs of it.   Upon reviewing in camera any such materials claimed to be privileged work product, the court can exercise its discretion to determine whether disclosure should be ordered pursuant to CPLR 3101(d)(2).

Order unanimously affirmed without costs.

MEMORANDUM: