Generali Insurance Co. of Trieste & Venice v. Honeywell, Inc.

194 A.D.2d 442, 599 N.Y.S.2d 254

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 1993
• Status: Published

Opinion

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered April 22, 1992, which, inter alia, denied the cross-motion seeking to compel the deposition of plaintiff Generali’s expert witness, Peter Valias Associates, unanimously affirmed, with costs.

The IAS Court properly determined that no "special circumstances” or conditions existed pursuant to CPLR 3101 (d) (1) (iii) warranting the deposition of plaintiff’s expert witness in connection with an explosion in the basement of the insured premises, where, as here, the material physical evidence, an allegedly defective gas valve manufactured by defendant Honeywell, which allegedly caused the explosion, had not been "lost or destroyed before the other side has had an opportunity to conduct its own expert inspection” (Rosario v General Motors Corp., 148 AD2d 108, 109). On the contrary, here Honeywell, Inc. was afforded an extensive opportunity to inspect and test the allegedly faulty gas valve and had been granted access to several pre-litigation reports, prepared by Consolidated Edison and the plaintiff’s expert witness as to the cause of the explosion. Concur—Sullivan, J. P., Ellerin, Kupferman, Ross and Asch, JJ.