Opinion
December 14, 1970
In an action to recover damages for wrongful death, conscious pain and suffering and loss of consortium, defendants I.T.T. Avis, Inc. and Avis Rent-A-Car System, Inc. appeal from so much of an order of the Supreme Court, Kings County, entered June 11, 1970, as denied their motion to impose penalties upon plaintiffs pursuant to CPLR 3126 for their failure to produce for discovery and inspection all of the automobile parts described in a notice for discovery and inspection. Order reversed insofar as appealed from, without costs, and appellants' motion remitted to the Special Term for a hearing as herein below stated and a new determination thereon. The facts establish that someone, who represented himself as being from "Avis", obtained the parts described in the notice for discovery and inspection. Plaintiffs, in their bill of particulars, which was served after the parts had been removed, alleged that there were defects in the entire left front side of the vehicle and that they caused the accident in the car which was owned by defendant Avis Rent-A-Car System, Inc., and leased to plaintiff's decedent Russell Bamfield Myers. When appellants served a notice to discover and inspect those parts, plaintiffs produced only three parts and claimed, through their attorney, that said parts were the only ones they had. Under such facts there should be a hearing to determine how plaintiffs came into possession of the three parts and whether plaintiffs or their attorney have or ever had possession of the parts which were not produced. Christ, P.J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.