| Mattern v Hornell Brewing Co., Inc. |
| 2011 NY Slip Op 04639 [84 AD3d 1323] |
| May 31, 2011 |
| Appellate Division, Second Department |
| Michael Mattern et al., Appellants, v Hornell Brewing Co.,Inc., et al., Appellants, and Anchor Glass Container Corporation,Respondent. |
—[*1] Devitt Spellman Barrett, LLP, Smithtown, N.Y. (Diane K. Farrell and Thomas Spellman ofcounsel), for defendants-appellants 1790 Walt Whitman Corp., doing business as Deli Worx,M.J.G. Deli Corp., doing business as Deli Worx, and Maurice Guidi, doing business as DeliWorx. Greenfield & Ruth, Mineola, N.Y. (Scott L. Mathias of counsel), for defendant-appellantMaplewood Beverage Packers, LLC. Goldberg Segalla, LLP, Mineola, N.Y. (David Osterman of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., (1) the plaintiffs appeal, and thedefendants 1790 Walt Whitman Corp., doing business as Deli Worx, M.J.G. Deli Corp., doingbusiness as Deli Worx, and Maurice Guidi, doing business as Deli Worx, separately appeal, froman order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered October 13, 2010,which granted those branches of the motion of the defendant Anchor Glass ContainerCorporation which were to permit its expert to remove a plastic shrink wrap label from a glassbottle which allegedly caused the injured plaintiff's injuries and to examine and conduct certaintesting of the subject bottle and, in effect, granted that branch of the motion of the defendantAnchor Glass Container Corporation which was to permit it to fill the bottle with water prior tothe removal of the label, (2) the defendant Maplewood Beverage Packers, LLC, appeals, aslimited by its brief, from so much of the same order as granted that branch of the motion of thedefendant Anchor Glass Container Corporation which was to permit its expert to remove theplastic shrink wrap label from the subject glass bottle, and (3) the defendants Hornell BrewingCo., Inc., Hornell Brewing Co., Inc., doing business as Ferolito, Vultaggio & Sons, Ferrolito,Vultaggio & Sons, Arizona Beverage Company, LLC, and Beverage Marketing USA, Inc.,appeal from the same order.
Ordered that the appeal by the defendants Hornell Brewing Co., Inc., Hornell Brewing Co.,Inc., doing business as Ferolito, Vultaggio & Sons, Ferrolito, Vultaggio & Sons, ArizonaBeverage Company, LLC, and Beverage Marketing USA, Inc., is dismissed as abandoned; and itis further,[*2]
Ordered that the appeal by the defendants 1790 WaltWhitman Corp., doing business as Deli Worx, M.J.G. Deli Corp., doing business as Deli Worx,and Maurice Guidi, doing business as Deli Worx from so much of the order as, in effect, grantedthat branch of the motion of the defendant Anchor Glass Container Corporation which was topermit to it to fill the bottle with water prior to the removal of the label is dismissed, as thosedefendants are not aggrieved by that portion of the order; and it is further,
Ordered that order is modified, on the facts and in the exercise of discretion, by deleting theprovision thereof granting that branch of the motion of the defendant Anchor Glass ContainerCorporation which was to permit its expert to remove the plastic shrink wrap label from the glassbottle which allegedly caused the injured plaintiff's injuries and substituting therefor a provisiondenying that branch of the motion; as so modified, the order is affirmed insofar as reviewed; andit is further,
Ordered that one bill of costs is awarded to the plaintiffs, the defendants 1790 Walt WhitmanCorp., doing business as Deli Worx, M.J.G. Deli Corp., doing business as Deli Worx, andMaurice Guidi, doing business as Deli Worx, and the defendant Maplewood Beverage Packers,LLC, appearing separately and filing separate briefs, payable by the defendant Anchor GlassContainer Corporation.
The plaintiff Michael Mattern (hereinafter the plaintiff) and his wife, suing derivatively,commenced this action to recover damages for personal injuries the plaintiff allegedly sustainedwhen he ingested glass fragments while drinking from a 20-ounce glass bottle. The glass bottlewas wrapped from the neck to its base in a plastic "shrink wrap" label. Subsequently, thedefendant Anchor Glass Container Corporation (hereinafter Anchor), the company whichallegedly manufactured the bottle, moved to permit its expert to remove the plastic shrink wraplabel from the bottle, fill the bottle with water prior to removal of the label, and to examine andconduct certain testing on the subject bottle. The plaintiffs and the other defendants opposed theremoval of the label on the ground that it would cause the destruction of the bottle. By orderentered October 13, 2010, the Supreme Court granted Anchor's motion. We modify.
"The party seeking to conduct destructive testing should provide a reasonably specificjustification for such testing including, inter alia, the basis for its belief that nondestructivetesting is inadequate and that destructive testing is necessary; further, there should be anenumeration and description of the precise tests to be performed, including the extent to whicheach such test will alter or destroy the item being tested" (Castro v Alden Leeds, Inc., 116AD2d 549, 550 [1986]; see Schioppa v Pallotta, 242 AD2d 698, 699 [1997]). Here, theSupreme Court improvidently exercised its discretion in granting that branch of Anchor's motionwhich was to permit its expert to conduct destructive testing of the subject bottle by removing thelabel. Anchor failed to establish the basis for its belief that nondestructive testing was inadequate(cf. Burley v Sears Roebuck & Co., 226 AD2d 494 [1996]), and failed to indicate theextent to which its proposed testing would alter or destroy the bottle (see Schioppa vPallotta, 242 AD2d at 699).
The Supreme Court erred in considering the expert affidavit of R. Keith Painter, whichAnchor improperly submitted to the court for the first time in reply (see Perre v Town ofPoughkeepsie, 300 AD2d 379, 380 [2002]).
The plaintiffs' contention that the Supreme Court erred by, in effect, granting that branch ofAnchor's motion which was to permit it to fill the bottle with water prior to the removal of thelabel is without merit. Rivera, J.P., Skelos, Florio and Austin, JJ., concur.