| Utica Mut. Ins. Co. v Berkoski Oil Co. |
| 2009 NY Slip Op 00371 [58 AD3d 717] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Utica Mutual Insurance Company, Appellant, v BerkoskiOil Company et al., Respondents. |
—[*1] London Fischer, LLP, New York, N.Y. (Virginia Goodman Futterman of counsel), forrespondent Berkoski Oil Company. Kaufman Borgeest & Ryan, LLP, Valhalla, N.Y. (Dennis J. Dozis and Jacqueline Mandell ofcounsel), for respondent Security Communications Audio Network Corporation, also known asS.C.A.N. Security.
In an action to recover damages for injury to real property, the plaintiff appeals from anorder of the Supreme Court, Suffolk County (Cohalan, J.), dated June 22, 2007, which grantedthe separate motions of the defendant Berkoski Oil Company and the defendant SecurityCommunications Audio Network Corporation, also known as S.C.A.N. Security, to dismiss thecomplaint pursuant to CPLR 3126 on the ground of spoliation of evidence.
Ordered that the order is modified, on the facts and in the exercise of discretion, by deletingthe provisions thereof granting the motions to dismiss the complaint and substituting thereforprovisions granting the motions only to the extent of precluding the plaintiff from offeringevidence at trial based upon any inspection of the subject pipe, and directing that an adverseinference charge be given at trial, and otherwise denying the motions; as so modified, the orderis affirmed, with one bill of costs to the plaintiff.
In March 2003 the owners of a home located in Bridgehampton discovered that theirpremises had [*2]sustained extensive water damage. The ownersmade claim under their homeowner's insurance policy which was underwritten by the plaintiff,Utica Mutual Insurance Company, and which ultimately paid out more than $700,000 on theclaim. In 2004 the plaintiff commenced this action against the defendant Berkoski Oil Company(hereinafter Berkoski), which had contracted with the owners to automatically deliver fuel oil tothe premises, and against the defendant Security Communications Audio Network Corporation,also known as S.C.A.N. Security (hereinafter SCAN), which had installed and was responsiblefor monitoring a "low temperature sensor alarm" as part of a general home security system at thepremises. Claiming that water infiltrated and damaged the property as a result of a pipe whichburst when the temperature inside the house became too low, the verified complaint attributedliability to the defendants, alleging that Berkoski allowed the heating oil to run out, and thatSCAN failed to properly monitor the low temperature sensor alarm at the premises.
Shortly after commencement of this lawsuit, Berkoski served a discovery demand for theproduction of, among other things, the "pipe which burst." However, despite additional requestsfrom defense counsel with respect to this evidence, as well as a court directive in a preliminaryconference order, the plaintiff never produced the pipe nor otherwise confirmed its whereabouts.The defendants then separately moved to dismiss the complaint pursuant to CPLR 3126 basedupon spoliation of evidence. The Supreme Court granted the motions, and we modify.
The Supreme Court is empowered with "broad discretion in determining the appropriatesanction for spoliation of evidence" (DeLos Santos v Polanco, 21 AD3d 397, 397 [2005]; see Iamiceli v General Motors Corp., 51 AD3d 635 [2008]; Dennis v City of New York, 18 AD3d599, 600 [2005]; Barahona vTrustees of Columbia Univ. in City of N.Y., 16 AD3d 445, 445-446 [2005]). "When aparty negligently losses or intentionally destroys key evidence, thereby depriving thenon-responsible party from being able to prove its claim or defense, the responsible party may besanctioned by the striking of its pleading" (Denoyelles v Gallagher, 40 AD3d 1027, 1027 [2007]; seeBaglio v St. John's Queens Hosp., 303 AD2d 341, 342-343 [2003]; Madison Ave. Caviarteria v HartfordSteam Boiler Inspection & Ins. Co., 2 AD3d 793, 796 [2003]).
The party requesting sanctions for spoilation has the burden of demonstrating that a litigantintentionally or negligently disposed of critical evidence, and "fatally compromised its ability todefend [the] action" (Lawson v AspenFord, Inc., 15 AD3d 628, 629 [2005]; see Kirschen v Marino, 16 AD3d 555, 555-556 [2005]). However,"striking a pleading is a drastic sanction to impose in the absence of willful or contumaciousconduct [and, thus, the courts must] consider the prejudice that resulted from the spoliation todetermine whether such drastic relief is necessary as a matter of fundamental fairness" (Iannucci v Rose, 8 AD3d 437,438 [2004]; see Favish v Tepler, 294 AD2d 396, 397 [2002]). When the moving party isstill able to establish or defend a case, a less severe sanction is appropriate (see De LosSantos v Polanco, 21 AD3d at 398; Iannucci v Rose, 8 AD3d at 438; Favish vTepler, 294 AD2d at 397).
Here, the Supreme Court improvidently exercised its discretion in imposing the sanction ofdismissing the complaint, as the defendants failed to establish that the plaintiff disposed of thesubject plumbing pipe intentionally or in bad faith, or that loss of evidence leaves them without ameans to defend the action (see Cohen vJordan Servs., Inc., 49 AD3d 680, 681 [2008]; Kerman v Martin Friedman, C.P.A., P.C., 21 AD3d 997, 999[2005]; Lawson v Aspen Ford, Inc., 15 AD3d at 629-630; Vaughn v City of NewYork, 201 AD2d 556, 558 [1994]). The plaintiff's negligent disposal of the subject pipeprejudiced all parties, but does not prevent the defendants from defending against the negligenceclaims in the complaint. Under these [*3]circumstances, theSupreme Court should have sanctioned the plaintiff by precluding it from offering evidence attrial of any inspection it conducted of the subject pipe and granting an adverse inference chargeagainst it (see Iamiceli v General Motors Corp., 51 AD3d at 635; Yechieli v Glissen Chem. Co., Inc., 40AD3d 988, 989 [2007]; Molinari vSmith, 39 AD3d 607, 608 [2007]; Jordan v Doyle, 24 AD3d 107 [2005]; Ifraimov v Phoenix Indus. Gas, 4AD3d 332, 334 [2004]). Fisher, J.P., Balkin, McCarthy and Leventhal, JJ., concur.[See 2007 NY Slip Op 31882(U).]