Marty v. Morse Diesel, Inc. — 161 A.D.2d 344

Majority

p. 344

Raphael Marty, Respondent, v Morse Diesel, Inc., Respondent and Third-Party Plaintiff-Respondent and Second Third-Party Plaintiff-Respondent, and U.S. Chutes Corp., Respondent and Third Third-Party Plaintiff-Respondent. Booth Memorial Medical Center, Third-Party Defendant-Appellant; Ment Brothers Iron Works, Second Third-Party Defendant-Respondent; Architectural Acoustics, Inc., et al., Third Third-Party Defendants-Respondents.

Order of the Supreme Court, New York County (William J. Davis, J.), entered September 12, 1989, which granted defendant Morse Diesel’s motion to compel further discovery, is unanimously affirmed, without costs, upon condition that the tile be restored to its original condition at Morse’s expense.

The discovery sought cannot be construed as destructive of the laundry room. While a portion of ceramic tile will be removed, defendant Morse has volunteered, at its own cost and expense, to return the room in question to its original state. Moreover, there does not appear to be any less drastic method to obtain this type of information sought (see, Castro v Alden Leeds, Inc., 116 AD2d 549 ). To deny defendant this discovery would severely limit this defendant’s capability to defend in the action (see, Kroll v Long Is. Light. Co., 102 AD2d 812 , 813).

We have reviewed appellant’s remaining contentions and find them to be without merit. Concur—Ross, J. P., Carro, Asch and Rubin, JJ.