| Holland v W.M. Realty Mgt., Inc. |
| 2009 NY Slip Op 05844 [64 AD3d 627] |
| July 14, 2009 |
| Appellate Division, Second Department |
| Aleah Holland et al., Appellants, v W.M. RealtyManagement, Inc., Respondent. |
—[*1] Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Steven R. Kramer of counsel),for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) somuch of an order of the Supreme Court, Kings County (Bayne, J.), dated November 7, 2007, asgranted that branch of the defendant's motion which was pursuant to CPLR 3126 to precludethem from offering any evidence at trial pertaining to mold samples which were taken andexamined by an environmental inspection firm retained by the plaintiffs' former counsel, and (2)an order of the same court dated May 14, 2008, which denied their motion for leave to renew andreargue their opposition to the defendant's motion.
Ordered that the appeal from so much of the order dated May 14, 2008 as denied that branchof the plaintiffs' motion which was for leave to reargue is dismissed, as no appeal lies from anorder denying reargument; and it is further,
Ordered that the order dated May 14, 2008 is reversed insofar as reviewed, on the law and inthe exercise of discretion, that branch of the plaintiffs' motion which was for leave to renew isgranted, and upon renewal, so much of the order dated November 7, 2007, as granted that branchof the defendant's motion which was pursuant to CPLR 3126 to preclude the plaintiffs fromoffering any evidence at trial pertaining to mold samples taken and examined by anenvironmental inspection firm retained by the plaintiffs' former counsel is vacated, and thatbranch of the defendant's motion is denied; and it is further,
Ordered that the appeal from the order dated November 7, 2007 is dismissed as academic inlight of our determination of the appeal from the order dated May 14, 2008; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
The plaintiffs allege that they were injured by toxic mold present in their apartment fromOctober 28, 2001, until July 1, 2002. The apartment was managed by the defendant. Inmid-[*2]July 2002, almost all of the mold was removed by thebuilding's superintendent. Approximately two weeks later, with the cooperation and assistance ofthe building superintendent, an industrial hygienist from Micro Ecologies, Inc. (hereinafterMicro Ecologies), collected two swab mold samples from a wall and a ceiling cavity of theapartment which were then sent to P&K Microbiologies Services, Inc. (hereinafter P&K), fordestructive testing. A small piece of wood from the ceiling cavity was retained by MicroEcologies. A preliminary report from Micro Ecologies, which included the test report from P&K,indicated the presence of contaminated levels of fungi and bacteria in the two swab samplestaken from the apartment.
Micro Ecologies had been retained by the plaintiffs' former counsel. The instant action wascommenced on July 28, 2005. Thereafter, the plaintiffs were ordered to make any mold samplesin their possession or control available to the defendant for nondestructive testing, pursuant to apreliminary conference order dated January 24, 2006, an order compelling disclosure dated May31, 2006, and a conditional order of preclusion dated June 14, 2007. When the samples were notmade available, the Supreme Court, in its order dated November 7, 2007, granted that branch ofthe defendant's motion which was to preclude evidence of mold test results. Thereafter, theplaintiff moved for leave to renew and reargue, providing evidence on renewal that the smallpiece of wood obtained from the ceiling cavity of the apartment retained by Micro Ecologies hadbeen recently located, and that the testable "shelf life" of the swabbed mold samples wasapproximately only six months, which had long before expired. By order dated May 14, 2008,the court denied the plaintiff's motion for leave to renew and reargue. The plaintiff appeals fromboth orders.
Under the common-law doctrine of spoliation, when a party negligently loses orintentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126(see Ingoglia v Barnes & Noble Coll.Booksellers, Inc., 48 AD3d 636, 637 [2008]; Baglio v St. John's Queens Hosp.,303 AD2d 341, 342 [2003]). However, striking a pleading as a sanction for spoliation isappropriate only where the missing evidence deprives the moving party of the ability to establishhis or her claim or defense (see Enstromv Garden Place Hotel, 27 AD3d 1084, 1086 [2006]; Iannucci v Rose, 8 AD3d 437, 438 [2004]; Baglio v St. John'sQueens Hosp., 303 AD2d at 342).
The Supreme Court has broad discretion in determining what, if any, sanction should beimposed for the spoliation of evidence (see Iannucci v Rose, 8 AD3d at 438; AllstateIns. Co. v Kearns, 309 AD2d 776 [2003]; Puccia v Farley, 261 AD2d 83, 85 [1999]).We should substitute our judgment for that of the Supreme Court only if its discretion wasexercised improvidently (see Melendezv City of New York, 2 AD3d 170, 170-171 [2003]).
A motion for leave to renew "shall be based upon new facts not offered on the prior motionthat would change the prior determination" (CPLR 2221 [e] [2]) and "shall contain reasonablejustification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]).However, it is within a court's discretion to grant leave to renew upon facts known to the movingparty at the time of the original motion (see J.D. Structures v Waldbaum, 282 AD2d 434,435 [2001]).
Under the peculiar facts of this action, the Supreme Court should have granted that branch ofthe plaintiffs' motion which was for leave to renew his earlier opposition, and, upon renewal, theprior order of preclusion should have been vacated. It was uncontested that the mold samplestaken in 2002 had a testable "shelf life" of only six months. That being the case, the destructionof the swabbed mold samples caused no prejudice to the defendant inasmuch as those sampleshad quickly and naturally lost their testable value (see Bannon v Auerbach, 6 Misc 3d 219, 220-221 [2004]). Thedefendant, having been put on notice of the plaintiffs' claims beginning in December 2001, couldhave obtained its own mold samples in 2002, but did not do so. Moreover, the wood sampletaken from the apartment has been recently located, for reasons adequately explained in theplaintiffs' renewal papers.
The parties' remaining contentions have been rendered academic. Dillon, J.P., Florio, Balkinand Austin, JJ., concur.