| Dean v Usine Campagna |
| 2007 NY Slip Op 07390 [44 AD3d 603] |
| October 2, 2007 |
| Appellate Division, Second Department |
| Darren Dean, Appellant-Respondent, v Usine Campagna etal., Respondents-Appellants, et al., Defendants. |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Harry Steinberg and Steven B.Prystowsky of counsel), for respondents-appellants.
In an action, inter alia, to recover damages for personal injuries based on strict productsliability, the plaintiff appeals, as limited by his brief, from so much of an order of the SupremeCourt, Rockland County (Nelson, J.), dated May 8, 2006, as granted the motion of the defendantsUsine Campagna, Campagna Moto Sport, Inc., and Campagna Corporation for summaryjudgment dismissing the complaint insofar as asserted against them based on spoliation ofevidence to the extent of precluding him from offering evidence based on his expert's inspectionof the physical evidence and denied as academic his cross motion to permit those defendants todepose his expert in lieu of a sanction for spoliation, and the defendants Usine Campagna,Campagna Moto Sport, Inc., and Campagna Corporation cross-appeal from so much of the sameorder as granted their motion only to the extent of precluding the plaintiff from offering evidencebased on his expert's inspection of the physical evidence.
Ordered that the order is modified, on the law, the facts, and as a matter of discretion, byadding thereto a provision imposing a monetary sanction against the plaintiff personally in theamount of $5,000, payable to the counsel for the defendants; as so modified, the order is affirmedinsofar as appealed and cross-appealed from, with costs to the defendants, payable to the counselfor the defendants Usine Campagna, Campagna Moto Sport, Inc., and Campagna Corporation;and it is further,[*2]
Ordered that the sanction shall be paid within 60 daysafter service upon the plaintiff's attorney of a copy of this decision and order.
On December 6, 2001 the plaintiff allegedly was injured when his T-Rex, a three-wheelmotor vehicle that he was operating, crashed into the rear of a parked tractor trailer. In April2002 a professional engineer photographed and inspected the T-Rex on behalf of the plaintiff. InJune 2002 the engineer generated a report concluding, inter alia, that the T-Rex had defects,including the design and the manufacture of the accelerator throttle pedal.
In December 2004 the plaintiff commenced this action against, among others, the defendantsUsine Campagna, Campagna Moto Sport, Inc., and Campagna Corporation (hereinafter thedefendants), the alleged designers and manufacturers of the T-Rex, asserting, inter alia, causes ofaction based on negligence and strict products liability. In particular, the plaintiff alleged that theaccelerator throttle pedal became jammed in the full open position, causing the T-Rex to collidewith the parked tractor trailer.
In July 2005 a discovery order was entered, requiring the plaintiff, inter alia, to make theT-Rex available for inspection no later than September 30, 2005. The plaintiff failed to complywith that order and after several unsuccessful demands for inspection, the defendants moved,inter alia, pursuant to CPLR 3126 to strike the complaint for his willful and contumacious failureto comply with the discovery order. In opposition to the defendants' motion, the plaintiffdisclosed that in February 2005 it was discovered that the T-Rex had been disassembled while ina storage facility and that certain of its parts, including the throttle pedal, were missing. TheSupreme Court, inter alia, denied the defendants' motion to strike the complaint, with leave torenew.
Thereafter, the defendants moved for summary judgment dismissing the complaint insofar asasserted against them based on the plaintiff's spoliation of the T-Rex. The plaintiff opposed themotion and cross-moved for an order permitting the defendants to depose his expert in lieu of aninspection of the T-Rex. The Supreme Court granted the defendants' motion to the extent ofprecluding the plaintiff from offering any evidence based upon his expert's inspection of theT-Rex.
"The court has broad discretion in determining the sanction for spoliation of evidence andmay, under the appropriate circumstances, impose a sanction if the destruction occurred throughnegligence rather than willfulness" (Molinari v Smith, 39 AD3d 607, 608 [2007]). Generally, striking apleading is reserved for instances of willful or contumacious conduct (id. at 608), and theprejudice resulting from spoliation must be considered in determining whether such drasticaction is necessary as a matter of elementary fairness (see De Los Santos v Polanco, 21 AD3d 397, 398 [2005]). Where aparty's negligent loss or destruction of evidence does not deprive its opponent of a means topresent or defend against a claim, striking a spoliator's pleading is not warranted (see E.W. Howell Co., Inc. v S.A.F. La SalaCorp., 36 AD3d 653, 655 [2007]; De Los Santos v Polanco, 21 AD3d at 397,398). Here, the plaintiff's negligent destruction of the subject T-Rex negates his manufacturingdefect claim, but does not preclude the defendants from defending against the design defectclaim. The dispute over whether the plaintiff disassembled his T-Rex when he painted it blue,and whether such disassembly may have caused the alleged throttle problem, is a question of factfor which both parties could use an exemplar T-Rex in support of their arguments on this issue(see Klein v Ford Motor Co., 303 AD2d 376, 378 [2003]; cf. Neal v Easton Aluminum, Inc., 15AD3d 459 [2005]). Additionally, by precluding the plaintiff from offering evidence based onhis expert's inspection of the T-Rex, the prejudice to the [*3]defendants, namely their inability to defend against themanufacturing defect claim, is greatly mitigated (see Lawson v Aspen Ford, Inc., 15 AD3d 628, 629-630 [2005]). Insum, in light of the defendants' ability to defend against the design defect claim despite theplaintiff's negligent destruction of the T-Rex, the court's determination to preclude the plaintifffrom offering any evidence based on his expert's inspection of the T-Rex is appropriate.
However, in light of the plaintiff's 10-month delay in informing the Supreme Court and thedefendants that the T-Rex had been negligently destroyed, a delay for which he offered noreasonable excuse, and during which time the defendants sought judicial intervention to compelproduction of the T-Rex, a monetary sanction against the plaintiff in the sum of $5,000 iswarranted (see CPLR 3126; Denoyelles v Gallagher, 40 AD3d 1027 [2007]; O'Neill v Ho, 28 AD3d 626[2006]; Garan v Don & Walt SuttonBldrs., Inc., 27 AD3d 521, 523 [2006]; Jacobs v Macy's E., Inc., 17 AD3d 318 [2005]; Carella v Reilly& Assoc., 297 AD2d 326 [2002]; Smith v New York Tel. Co., 235 AD2d 529, 530[1997]; Athanasiou v First Natl. City Bank US Corp., 225 AD2d 726 [1996]).
The plaintiff's remaining contention is without merit. Miller, J.P., Skelos, Covello andMcCarthy, JJ., concur.