Hamilton v. New Branford, Inc.

Appellate Division of the Supreme Court of New York

Hamilton v. New Branford, Inc.

289 A.D.2d 87, 735 N.Y.S.2d 22

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 13, 2001

StatusPublished

This text of 289 A.D.2d 87 (Hamilton v. New Branford, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hamilton v. New Branford, Inc., 289 A.D.2d 87, 735 N.Y.S.2d 22 (N.Y. Ct. App. 2001).

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Opinion

Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered March 13, 2000, which, to the extent appealed from as limited by the brief, denied defendant-appellant Fab Industries Co.’s motion for summary judgment premised on a spoliation of evidence claim, unanimously affirmed, without costs.

The infant plaintiff allegedly sustained serious burn injuries when the sleep garment she was wearing, made with material manufactured by appellant, caught fire. Appellant was not entitled to a spoliation of evidence sanction based on the circumstance that the remaining remnant of the subject sleep garment is insufficient to permit testing pursuant to Federal children’s sleepwear flammability standards. Appellant never sought to test the garment, even though it was produced by plaintiffs for appellant’s inspection, and plaintiffs, in opposing appellant’s motion, submitted evidence that the garment remnant produced is all that remains after the fire (see, Longo v Armor El. Co., 278 AD2d 127, 128).

Tests performed by plaintiffs’ expert upon an exemplar garment purchased by plaintiffs in contemplation of litigation do not constitute spoliation of evidence and, in any event, appellant failed to establish that plaintiffs’ failure to preserve the exemplar garment in its original condition will prevent it from presenting a defense (see, Longo v Armor El. Co., supra, at 128), or that plaintiffs’ expert used more of the garment than was necessary to perform his tests (see, Sage Realty Corp. v Proskauer Rose, 275 AD2d 11, 17-18). Concur — Sullivan, P. J., Rosenberger, Williams, Tom and Friedman, JJ.

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Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered March 13, 2000, which, to the extent appealed from as limited by the brief, denied defendant-appellant Fab Industries Co.’s motion for summary judgment premised on a spoliation of evidence claim, unanimously affirmed, without costs.

The infant plaintiff allegedly sustained serious burn injuries when the sleep garment she was wearing, made with material manufactured by appellant, caught fire. Appellant was not entitled to a spoliation of evidence sanction based on the circumstance that the remaining remnant of the subject sleep garment is insufficient to permit testing pursuant to Federal children’s sleepwear flammability standards. Appellant never sought to test the garment, even though it was produced by plaintiffs for appellant’s inspection, and plaintiffs, in opposing appellant’s motion, submitted evidence that the garment remnant produced is all that remains after the fire (see, Longo v Armor El. Co., 278 AD2d 127, 128).

Tests performed by plaintiffs’ expert upon an exemplar garment purchased by plaintiffs in contemplation of litigation do not constitute spoliation of evidence and, in any event, appellant failed to establish that plaintiffs’ failure to preserve the exemplar garment in its original condition will prevent it from presenting a defense (see, Longo v Armor El. Co., supra, at 128), or that plaintiffs’ expert used more of the garment than was necessary to perform his tests (see, Sage Realty Corp. v Proskauer Rose, 275 AD2d 11, 17-18). Concur — Sullivan, P. J., Rosenberger, Williams, Tom and Friedman, JJ.

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Bluebook (online)

289 A.D.2d 87, 735 N.Y.S.2d 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hamilton-v-new-branford-inc-nyappdiv-2001.

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