Opinion
May 15, 1986
Appeal from the Supreme Court, New York County (Tyler, J.).
Plaintiffs allege that plaintiff Anna Di Giovanni was injured when she was struck in and about her right eye by a metal "twist-off" bottle cap while she was attempting to remove it from a bottle of Pepsi Cola. They allege that "the premature release and propulsion of the cap were due, at least in part, to the weakness of the threads and their defective nature and condition." They state that they "intend to demonstrate at trial the weakness of the threads and the consequent ease with which the cap may be separated and propelled from the bottle." Defendants Pepcom Industries, Inc. and Supermarkets General Corporation served a notice for discovery and inspection of the bottle and cap. Plaintiffs move, pursuant to CPLR 3104, for the appointment of a Referee to supervise the disclosure, in order to protect and preserve the condition of the cap and bottle during disclosure. They assert that while "[d]efendants are unquestionably entitled to such disclosure * * * it is feared that, during the course of the disclosure, defendants' representatives might inadvertently alter the physical condition of the cap or bottle and that the alteration might preclude the demonstrations which plaintiffs intend to make at trial." They state that "[j]udicial supervision of the disclosure would preclude or substantially lessen the risk of alteration of the physical condition of the cap and bottle." Pepcom and Supermarkets did not oppose the motion. Pepsico did not oppose the motion, provided that the entire cost of the reference be paid by the plaintiffs. Special Term, in a one-sentence decision and order, denied the motion.
The supervisory power conferred by CPLR 3104 should be exercised sparingly and its exercise is not warranted in the absence of special circumstances. (See, National Dairy Prods. Corp. v Lawrence Am. Field Warehousing Corp., 23 A.D.2d 650 [1st Dept 1965]; Brooks, Hampton, Levy Walker v Balaban, 22 A.D.2d 679 [1st Dept 1964]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3104:1, p 338.) It does not appear that the bottle and cap to be inspected are complex items which would require extensive metallurgical or chemical tests of a destructive nature.
Plaintiffs' rights can be adequately protected by having a representative and expert of their choice present when the inspection and testing of the items are to be conducted, with the right to photograph the items before and after each stage of any test conducted. Copies of any test reports should be furnished to the plaintiffs and the expense of inspection and testing should be borne by the defendants. (See, CPLR 3101, 3120; Dunne v Zene, 88 A.D.2d 539 [1st Dept 1982]; Petruk v South Ferry Realty Co., 2 A.D.2d 533, 536 [2d Dept 1956]; Foster-Lipkins Corp. v Suburban Propane Gas Corp., 72 Misc.2d 457 [Sup Ct, Albany County 1973]; Edwardes v Southampton Hosp. Assn., 53 Misc.2d 187, 190 [Sup Ct, Suffolk County 1967]; 3A Weinstein-Korn-Miller, N Y Civ Prac ¶ 3120.25.)
Concur — Sullivan, J.P., Carro, Kassal, Rosenberger and Ellerin, JJ.