In Holland v. W.M. Realty Mgt., Inc., the plaintiffs claimed that they were injured by toxic mold present in their apartment that the defendant managed. Before the mold was removed, the plaintiffs collected two samples that were sent for destructive testing. Thereafter, the plaintiffs failed to comply with three court orders to make any mold samples in their possession available to the defendant for nondestructive testing. As such, the trial court precluded the plaintiffs from offering their own test results into evidence. The Appellate Division reversed and held that preclusion was inappropriate where the defendant had notice of the plaintiffs’ claim and could have obtained its own mold samples, but failed to do so.

Thanks to Bill Kirrane for his contribution to this post.

http://www.nycourts.gov/reporter/3dseries/2009/2009_05844.htm