| Marotta v Hoy |
| 2008 NY Slip Op 08232 [55 AD3d 1194] |
| October 30, 2008 |
| Appellate Division, Third Department |
| Christine Marotta, Respondent, v Matthew Hoy et al.,Appellants. |
—[*1] Bailey, Kelleher & Johnson, P.C., Albany (Nanette R. Kelleher of counsel), forrespondent.
Spain, J. Appeal from an order of the Supreme Court (Kramer, J.), entered June 1, 2007 inSchenectady County, which, among other things, denied defendants' cross motion for leave to amendthe answer.
In December 2005, plaintiff was seriously injured when a police car driven by defendant MatthewHoy, a police officer employed by defendant City of Schenectady Police Department, collided with hervehicle. Plaintiff reportedly sustained traumatic brain injury and has no recall of the accident. Withindays of the accident, plaintiff's attorney submitted a written request that both vehicles be preserved intheir "immediate post-accident condition." While defendants, soon thereafter, permitted plaintiff'sattorney to inspect plaintiff's vehicle, her attorney was denied access to the police vehicle which wasbeing stored alongside her vehicle in the police station parking lot. In January 2006, a notice of claim(see General Municipal Law § 50-e) was filed on plaintiff's behalf. In late February2006, plaintiff was charged with and pleaded not guilty to two traffic violations related to the accident(see Vehicle and Traffic Law § 1126 [a]; § 1144 [a]). Without notice to plaintiff'sattorney, defendants performed their own accident reconstruction inspection of the police vehicle andthen [*2]had it towed to a remote, outdoor storage site in another partof the city.[FN1]On March 1, 2006, her attorney and his reconstruction expert went to inspect the police vehicle at itsnew location, and discovered it had been vandalized; the lights and siren had been removed and wireshad been cut, precluding a meaningful examination of its immediate postaccident condition. Plaintiff thenbrought a prelitigation proceeding in Supreme Court seeking preservation of the police vehicle and toprevent further vandalism, and a hearing was held at which the court, from the bench, ordereddefendants "to preserve all evidence," to "put the vehicle inside," and to make sure it is preserved in its"present condition."
Plaintiff thereafter commenced the instant negligence action, and went to trial on the trafficviolations in Schenectady City Court (Clark, J.) disputing that Hoy's sirens or lights were activated atthe time of the accident. City Court issued a written decision finding plaintiff guilty of violating Vehicleand Traffic Law § 1144 (a) (operation of vehicles on approach of authorized emergencyvehicles), concluding as a matter of fact that Hoy's emergency lights and sirens[FN2]were operating at the time of the accident and that Hoy was operating his vehicle with reasonable careunder the circumstances.
After issue was joined, plaintiff moved to strike defendants' answer (see CPLR 3126)based upon the spoliation of evidence. Defendants cross-moved to amend their answer to include theaffirmative defense of collateral estoppel—premised upon City Court's findings—and todismiss the complaint on that ground. After a hearing, Supreme Court granted plaintiff's motion only tothe extent of ruling that she is entitled at trial to an adverse inference charge regarding spoliation ofevidence (see PJI 1:77). The court denied defendants' cross motion in its entirety, and theynow appeal, challenging both rulings.
Initially, we reject defendants' claim that Supreme Court abused its discretion in denying their crossmotion to amend their answer to assert the affirmative defense of collateral estoppel, given that it is"plainly lacking in merit"[FN3](Smith v Haggerty, 16 AD3d 967,968 [2005]; see CPLR 3025 [b]; see also Matter of Senior Care Servs., Inc. v New York State Dept. ofHealth, 46 AD3d 962, 964-965 [2007]; Pigliavento v Tyler Equip. Corp., 233AD2d 810, 810 [1996]; cf. Bast Hatfield,Inc. v Schalmont Cent. School Dist., 37 AD3d 987, 988 [2007]). The essential requirementsfor invocation of this equitable doctrine are (1) that the party invoking the doctrine must prove that anidentical issue was necessarily decided in a prior action which is decisive of the present action, and (2)that the party to be precluded must have had a full and fair opportunity to contest the prior decision saidto be controlling (see D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664[1990]).[*3]
Focusing on "the realities of litigation" (Schwartz v PublicAdm'r of County of Bronx, 24 NY2d 65, 72 [1969]), the Court of Appeals "has recognized that,in appropriate situations, an issue decided in a criminal proceeding may be given preclusive effect in asubsequent civil action" (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d at 664;see Pahl v Grenier, 279 AD2d 882, 883 [2001]). However, the Court has also concluded that"petty infractions below the grade of a misdemeanor . . . , like traffic violations," which arenoncriminal offenses (see Penal Law § 10.00 [6]), "are illustrative of the type ofdetermination which, under accepted common-law principles, should not be held conclusive in latercases" (Gilberg v Barbieri, 53 NY2d 285, 293 [1981]; see McGraw v Ranieri, 202AD2d 725, 726 [1994]).[FN4]The Court reasoned that "[t]he brisk, often informal, way in which these matters must be tried, as wellas the relative insignificance of the outcome, afford the party neither opportunity nor incentive to litigatethoroughly or as thoroughly as [the party] might if more were at stake" (Gilberg v Barbieri, 53NY2d at 293).
Indeed, as Supreme Court recognized, the testimony at plaintiff's traffic violation trial was limiteddue to the more narrow scope of that proceeding, and the issue of spoliation of evidence was not fullylitigated or decided. Thus, while a guilty plea to a traffic violation may constitute some evidence ofnegligence (see e.g. McGraw v Ranieri, 202 AD2d at 726) and the disposition of a trafficticket may be admissible in a subsequent civil case for limited purposes (see Martin v Clark, 47 AD3d 981, 983[2008]), a determination concerning a traffic violation should not be given collateral estoppel effect in asubsequent negligence action (see Gilberg v Barbieri, 53 NY2d at 293). Accordingly,defendants' motion to amend their complaint and to dismiss was properly denied.[FN5]
Turning to Supreme Court's determination that plaintiff is entitled to an adverse inference instructionas a sanction for negligent spoliation of evidence (see PJI 1:77), we discern no abuse ofdiscretion (see Allain v Les Indus. PortesMackie, Inc., 16 AD3d 863, 864 [2005]; Gilbert v Albany Med. Ctr., 13 AD3d 753, 754 [2004]; LawrenceIns. Group v KPMG Peat Marwick, 5 AD3d 918, 920 [2004]; Bigelow v Dick's Sporting Goods, 1 AD3d777 [2003]; see also CPLR 3126). At the hearing, it was established that defendantswere notified shortly after the accident that the vehicles should be preserved in their postaccidentcondition and were aware of potential future litigation. The police vehicle, which was under defendants'exclusive possession and control, was stored at the police station parking lot (where plaintiff'srepresentatives were denied access to it) until it was inspected and videotaped by a police departmentaccident reconstructionist. It was then taken to the remote outdoor site for storage [*4]where it was vandalized sometime prior to March 1, 2006. Moreover,despite the court's verbal directive at the April 21, 2006 hearing to move the vehicle indoors andpreserve it in its then present condition, it remained outside. While the court was of the view that, underthese circumstances, the drastic remedy of striking defendants' answer was not warranted, it concludedthat a charge on spoliation was the appropriate remedy for the failure to properly secure the vehicle.This ruling was well within the court's discretionary purview and will not be disturbed on appeal(see Allain v Les Indus. Portes Mackie, Inc., 16 AD3d at 864-865; Gilbert v Albany Med.Ctr., 13 AD3d at 754; Lawrence Ins. Group v KPMG Peat Marwick, 5 AD3d at 920;cf. Jones v General Motors Corp., 287 AD2d 757, 759-760 [2001]).
Mercure, J.P., Peters, Malone Jr. and Stein, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: The site reportedly has a lockedgate, a high fence and security guards until midnight.
Footnote 2: Plaintiff was found not guilty ofVehicle and Traffic Law § 1126 (a) (no passing zone).
Footnote 3: Defendants correctly assert that theycan invoke collateral estoppel despite the fact that they were not a party to the City Court proceedingsagainst plaintiff, in that mutuality is not required (see S.T. Grand, Inc. v City of New York, 32NY2d 300, 304 [1973]).
Footnote 4: The Court of Appeals alsointerpreted Vehicle and Traffic Law § 155 to preclude giving collateral estoppel effect to trafficconvictions.
Footnote 5: We are unpersuaded by defendants'arguments that the Court's holding in Gilberg should be limited to a plaintiff's offensive use ofcollateral estoppel and is inapplicable, as here, to defendants' defensive efforts to use that doctrine,given that the rationale of that decision focused on the nature of the prior noncriminal proceedings, therelative insignificance of the outcome and the lack of incentive or opportunity to litigate them asthoroughly.