| Weber v Harley-Davidson Motor Co., Inc. |
| 2009 NY Slip Op 00372 [58 AD3d 719] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Robert B. Weber et al., Appellants, v Harley-DavidsonMotor Company, Inc., et al., respondents. |
—[*1] Littleton Joyce Ughetta Park & Kelly, LLP, Purchase, N.Y. (James C. Ughetta and Kevin P.Arias of counsel), for respondent Harley-Davidson Motor Company, Inc. Rivkin Radler, LLP, Uniondale, N.Y. (Evan H. Krinick and Cheryl F. Korman of counsel),for respondent Lighthouse Harley-Davidson, Inc.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Queens County (Elliot, J.), dated August 9, 2007, which denied theirmotion to strike the respective answers and affirmative defenses of the defendants pursuant toCPLR 3126 (3) for failure to comply with discovery demands, and based on the spoliation ofevidence, and for summary judgment on the issue of liability.
Ordered that the order is modified, on the law and in the exercise of discretion, by addingprovisions thereto directing the defendant Harley-Davidson Motor Company, Inc., to disclose allof the information it has regarding the subject circuit breaker, including, inter alia, any data,tests, and analysis it performed, whether in response to inquiries by the National HighwayTraffic Safety Administration or otherwise, and precluding the defendants from arguing orpresenting evidence that the circuit breaker at issue was adequate for the purpose for which itwas designed, or from arguing or presenting evidence as to any alternative source of the allegedtotal loss of electrical power that might have been rebutted by [*2]evidence obtained from the inspection and testing of the circuitbreaker in accordance herewith; as so modified, the order is affirmed, with one bill of costs tothe plaintiffs.
The plaintiff Robert B. Weber (hereinafter the plaintiff) purchased a motorcyclemanufactured by the defendant Harley-Davidson Motor Company, Inc. (hereinafterHarley-Davidson), from the defendant Lighthouse Harley-Davidson, Inc. (hereinafterLighthouse). In late 2003-early 2004, the National Highway Traffic Safety Administrationnotified Harley-Davidson that it was investigating complaints that the main circuit breakers oncertain motorcycles were "tripping for no apparent reason." In response, Harley-Davidson notedthat it had received reports in 2001 of such occurrences during "rest or 'parade' conditions," andin mid-to-late 2003 of such occurrences on moving motorcycles. Harley-Davidson further notedthat its own tests "showed very inconsistent results," including that the "flow of current toleratedthrough main circuit breaker was affected by amperage, heat and vibration." In March 2004Harley-Davidson initiated a voluntary recall of certain motorcycles, including the plaintiff's. Therecall affected 81,496 motorcycles, 49,287 of which were remedied. In relevant part, the recallnotice provided as follow: "These motorcycles have a condition whereby the 40 Amp maincircuit breaker could open due to reasons other than for which it was designed, causing anunexpected interruption of all electrical power to the motorcycle. This condition could cause a'quit while riding' condition which would occur without warning and ultimately lead to a crash,thereby presenting a risk of death or injury to the rider. We strongly urge you to take yourmotorcycle to your dealer to have the appropriate service performed as soon as possible. Shouldyou choose to ride your motorcycle prior to this service, we urge you to be aware of thiscondition."
The remedy provided involved the replacement of a 40-amp circuit breaker with a 50-ampcircuit breaker. The recall did not provide for the testing of circuit breakers prior to replacement,or for the preservation of the same after replacement, and no such testing or preservationoccurred. Rather, the replaced breakers were returned to Harley-Davidson in Milwaukee, whereall of the breakers were discarded.
The plaintiff received a recall notice and contacted Lighthouse. On May 15, 2004 whileriding his motorcycle to Lighthouse for the remedy, the plaintiff crashed. According to theplaintiff, his motorcycle "went dead" in a turn on an exit ramp and he "went down." The plaintiffwas able to restart the bike with the help of a jump start from a passing motorist and completedthe trip to Lighthouse. According to the plaintiff, he told employees of Lighthouse how the crashhad occurred, and complained to one employee that he had not been adequately warned of thedanger presented by the circuit breaker. The employees of Lighthouse bandaged the plaintiff'sarm, which was bleeding, and offered to call the police or an ambulance, which the plaintiffrefused. According to employees of Lighthouse, the plaintiff complained only that he "lost thesteering" on the motorcycle. The plaintiff waited at Lighthouse while the recall work wasperformed and then rode the motorcycle home, stopping at a bank along the way. According tothe plaintiff, he had showered and shaved and was watching television when his wife remarkedabout his neck, which was swollen. The plaintiff was taken to the hospital, where he wasdiagnosed with three broken ribs and remained for five days. By letter dated June 28, 2004,counsel for the plaintiff notified Lighthouse that [*3]he had beenretained by the plaintiff to prosecute a personal injury action and requested that the circuitbreaker removed from the plaintiff's motorcycle be retained and preserved. The dates that theletter was sent by counsel from Howard Beach and received by Lighthouse in Huntington Stationare not clear from the record. Although the letter indicates that it was sent by registered mail,return receipt requested, no documents related to the mailing were made part of the record. Inaddition, the plaintiff did not proffer any sworn assertions as to the same.
Lighthouse did not retain and preserve the circuit breaker. Rather, the circuit breaker wasreturned to Harley-Davidson in Milwaukee pursuant to the recall procedures. An employee fromHarley-Davidson averred that the recall tag for the circuit breaker removed from the plaintiff'smotorcycle was scanned at Harley-Davidson in Milwaukee on July 7, 2004 which, she opined,probably meant that the tag and circuit breaker were received several days earlier. In August2004 the plaintiff and his wife commenced this action to recover damages for personal injuries,etc. The plaintiffs moved to strike the respective answers and affirmative defenses of thedefendants pursuant to CPLR 3126 (3) on the ground, among others, that the circuit breakerremoved from his motorcycle had been discarded. Further, the plaintiffs argued, upon the grantof that relief, he should be awarded summary judgment on the issue of liability. The SupremeCourt denied the motion. We modify.
The Supreme Court providently exercised its discretion in denying that branch of theplaintiffs' motion which was pursuant to CPLR 3126 (3) to strike the defendants' answers andaffirmative defenses for failure to comply with discovery demands. The drastic remedy ofstriking an answer is inappropriate absent a clear showing that the failure to comply withdiscovery demands is willful, contumacious, or in bad faith (see Jenkins v Proto Prop. Servs., LLC, 54 AD3d 726 [2008]; Denoyelles v Gallagher, 40 AD3d1027 [2007]). Here, the plaintiffs failed to demonstrate that the failure to produce the circuitbreaker was the product of willful, contumacious, or bad faith conduct by either defendant (see Jenkins v Proto Prop. Servs., LLC,54 AD3d 726 [2008]; Denoyelles vGallagher, 40 AD3d 1027 [2007]). Further, the Supreme Court providently exercised itsdiscretion in denying that branch of the plaintiffs' motion which was to strike the defendants'answers and affirmative defenses on the ground of spoliation of the circuit breaker after being onnotice that such evidence might be needed for future litigation (see Jenkins v Proto Prop. Servs., LLC,54 AD3d 726 [2008]; Barnes vPaulin, 52 AD3d 754 [2008]; Denoyelles v Gallagher, 40 AD3d 1027 [2007]; DiDomenico vC & S Aeromatik Supplies, 252 AD2d 41 [1998]). The loss of the circuit breaker did notleave the plaintiff "prejudicially bereft" of the means of prosecuting this action against thedefendants (see Jenkins v Proto Prop.Servs., LLC, 54 AD3d 726 [2008]; Barnes v Paulin, 52 AD3d 754 [2008]; Denoyelles v Gallagher, 40 AD3d1027 [2007]; DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41 [1998]).
However, this does not mean that a lesser sanction is not warranted. The loss and apparentdestruction of all of the removed circuit breakers deprived the plaintiffs of an opportunity toconduct their own testing and examination of the breaker. Thus, the plaintiffs are entitled todisclosure by Harley-Davidson of all of the information it has regarding the circuit breakers,including, inter alia, any data, tests, and analysis it performed, whether in response to inquiriesby the National Highway Traffic Safety Administration or otherwise. Further, at trial, bothdefendants must be precluded from arguing or presenting evidence that the circuit breaker atissue was adequate for the purpose for which it was designed, or from arguing or presentingevidence as to any alternative source of the alleged total loss of electrical power that might havebeen rebutted by evidence obtained from the inspection and testing of the circuit breaker.Finally, the jury must be instructed that, should it credit the testimony of the plaintiff that [*4]he suffered a total loss of electrical power to the motorcycle justprior to the crash, it may infer that the loss resulted from the failure of the circuit breaker toperform as intended.
The plaintiffs' remaining contention is without merit. Ritter, J.P., Florio, Miller and Carni,JJ., concur. [See 2007 NY Slip Op 32660(U).]