Hoag v. Chase Pitkin Home & Garden Center

—Order unanimously affirmed without costs. Memorandum: Plaintiff Peggy J. Hoag was injured on July 23, 1992 when she was struck by a display board that came loose from its brackets and fell from a shelf in defendant’s store. Plaintiffs commenced this negligence action in March 1995. The display board had been repaired and rehung shortly after the accident, and then removed and destroyed when, in January 1994, defendant stopped selling the brand of floor tile displayed on the board. Supreme Court properly denied plaintiffs’ motion for summary judgment on liability as a sanction for defendant’s destruction of the display board. “In the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices” (Conderman v Rochester Gas & Elec. Corp., 262 AD2d 1068, 1070; see, Schidzick v Lear Siegler, Inc., 222 AD2d 841, 842; cf., Squitieri v City of New York, 248 AD2d 201; Mudge, Rose, Guthrie, Alexander & Ferdon v Penguin Air Conditioning Corp., 221 AD2d 243). Plaintiffs are not prevented from establishing a prima facie case (see, Berwecky v Montgomery Ward, 214 AD2d 936, 937-938, lv dismissed 86 NY2d 837), and, as previously noted by this Court on a prior appeal (Hoag v Chase Pitkin Home & Garden Ctr., 252 AD2d 953, 954), plaintiffs also may pursue nonparty disclosure against the tile company. Finally, the court did not abuse its discretion in directing defendant and its liability insurer to produce all reports, notes and memoranda concerning the display board and any photographs of it. Upon reviewing in camera any such materials claimed to be privileged work product, the court can exercise its discretion to determine whether disclosure should be ordered pursuant to CPLR 3101 (d) (2). (Appeals from Order of Supreme Court, Monroe County, VanStrydonck, J. — Summary Judgment.) Present — Green, J. P., Lawton, Pigott, Jr., Hurl-butt and Callahan, JJ.