DEFENDANT DECIDES WHETHER VISIT IS WORTH TIME AND EFFORTAfter falling on a “vent hole in the floor from which a swirl diffuser cover had become displaced,” TB sued S&F -- a carpet and flooring subcontractor who had been hired to replace the existing carpet – together with ST, the general contractor.
During the course of discovery, one of the defendants (S&F) sought to inspect the accident site, and both the building’s owner and TB initially agreed to that request. But, inexplicably, months later, that consent was withdrawn by TB.
After the New York County Supreme Court denied its motion for an order directing a property inspection, on the grounds that conditions at the premises had changed and was unlikely to yield helpful information, an appeal ensued.
The Appellate Division, First Department, noted that since New York State law requires “full disclosure” of all “material and necessary” matters in the context of litigation, and that such requests are to “liberally” granted, it believed that the S&F’s motion should have been granted.
While a court is empowered to avoid “unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice," the AD1 didn’t think the plaintiff demonstrated the existence of any of those elements here. And, in an event, it was up to the defendant S&F, not the plaintiff, to determine whether the inspection would likely “produce relevant information … worth S&Fs time and effort.”
Given the “relatively modest expense” that would be incurred by TB if the inspection were permitted, the AD1 could see no basis for denying the defendants’ application and noted that her counsel had probably spent more time and costs opposing the request than would have been expended if plaintiff had simply allowed the inspection to proceed.
Was that a lousy cover-up?
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DECISION