Alicea v. Palazzo Sons Builders, No. Cv94 0705509 (Oct. 31, 1996)
1996 Conn. Super. Ct. 8351
| Conn. Super. Ct. | 1996

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR ORDER This is an action to recover damages from a tile-installer for his alleged negligent work in the installation of a kitchen floor, claiming variously that insufficient grout was used in the mixture applied, that insufficient mortar was used on the back of the tile and that necessary gaps were not provided in the "overlayment sheets of plywood." On January 15, 1995, fifteen days after the return date, Defendants' attorney sent Plaintiffs' attorney a request for opportunity to inspect, photograph and test the alleged defective floor. It appears that the floor was replaced by Plaintiffs in late January or February 1995 without saving any of the materials for Defendants to inspect or test.

Defendants move for an order pursuant to Practice Book § 231 requesting alternative forms of relief ranging from a non-suit, costs and the entry of various evidentiary orders.

It appearing to the court that Plaintiffs became aware of Defendants' request to inspect before the replacement work was completed but failed to preserve any of the materials involved, or make them available for Defendants' inspection, in violation of § 231 it is ordered:

1. Plaintiffs are precluded from presenting any expert CT Page 8352 testimony based on inspection of any of the materials involved.

2. Any photographs of the materials involved will be made available to Defendants by Plaintiffs without cost.

3. At trial, the full circumstances leading to the replacement of the floor, the discarding of the materials, and the failure to make the materials available for inspection shall be made to the trier of fact and the trier of fact may infer that the discarded materials if available for trial or inspected by the Defendants would have been detrimental to the Plaintiffs' case, subject to the discretion of the trial court.

4. Defendants are awarded $250 attorney's fees in connection with this motion.

Jerry Wagner Trial Judge Referee