| Fossing v Townsend Manor Inn, Inc. |
| 2010 NY Slip Op 03275 [72 AD3d 884] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Darlene Fossing, Respondent, v Townsend Manor Inn,Inc., Appellant, and Anthony Pergolizzi, Respondent. (Action No. 1.) Anthony ChristopherPergolizzi, Respondent, v County of Suffolk et al., Defendants, and Townsend Manor Inn, Inc.,Appellant. (Action No. 2.) Darlene Fossing, Respondent, v Ferrandino & Son, Inc., et al.,Appellants. (Action No. 3.) Anthony Christopher Pergolizzi, Respondent, v Ferrandino & Son,Inc., et al., Appellants. (Action No. 4.) |
—[*1] McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York, N.Y. (Brian W. Keatts ofcounsel), for appellants in action Nos. 3 and 4. Siben and Siben LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for plaintiff-respondentin action Nos. 1 and 3. Borchert, Genovesi, LaSpina & Landicino, P.C., Whitestone, N.Y. (Anthony J. Genovesi,Jr., of counsel), for defendant-respondent in action No. 1 and respondent in action Nos. 2 and4.
In four related actions to recover damages for personal injuries which were joined fordiscovery and trial, Townsend Manor Inn, Inc., a defendant in action Nos. 1 and 2, appeals, aslimited by its brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.),dated January 29, 2009, as denied its motion to dismiss the complaint in action No. 2 insofar asasserted against it as a sanction for spoliation of evidence and for summary judgment on its cross[*2]claims against Anthony Pergolizzi, a defendant in action No.1 and the plaintiff in action Nos. 2 and 4, and Ferrandino & Son, Inc., and Ferrandino & SonEnvironmental, Inc., the defendants in action Nos. 3 and 4, appeal, as limited by their brief, fromso much of the same order as denied their cross motion to dismiss the complaint in action No. 4as a sanction for spoliation of evidence, for summary judgment dismissing the complaint inaction No. 4, and for summary judgment on their cross claims against Anthony ChristopherPergolizzi in action No. 4.
Ordered that the order is modified, on the law, on the facts, and in the exercise of discretion,by deleting the provision thereof denying those branches of the motion of Townsend Manor Inn,Inc., and the cross motion of Ferrandino & Son, Inc., and Ferrandino & Son Environmental, Inc.,which were to impose a sanction for spoliation of evidence, and substituting therefor a provisiongranting those branches of the motion and the cross motion to the extent of directing AnthonyChristopher Pergolizzi to disclose all of the information he has regarding the subject boat,including, inter alia, any data, tests, and analyses he performed, precluding him from arguing orpresenting evidence at trial that the subject boat was not the cause of the fire at issue, anddirecting that an adverse inference charge be given at trial as to the defective condition of theboat, and otherwise denying those branches of the motion and the cross motion; as so modified,the order is affirmed insofar as appealed from, with one bill of costs to the appellants appearingseparately and filing separate briefs.
On August 29, 2004, Darlene Fossing, the plaintiff in action Nos. 1 and 3, was a passengeron board a boat owned and operated by Anthony Christopher Pergolizzi, a defendant in actionNo. 1 and the plaintiff in action Nos. 2 and 4. During or upon completion of refueling of the boatat a marina operated by the Townsend Manor Inn, Inc. (hereinafter Townsend), a defendant inaction Nos. 1 and 2, in Greenport, the boat caught fire. As a result of an explosion, or as a resultof attempting to extinguish the fire, or as a result of both, Fossing and Pergolizzi allegedlysustained multiple burn injuries. Several months before the alleged accident, Ferrandino & Son,Inc., and/or Ferrandino & Son Environmental, Inc., the defendants in action Nos. 3 and 4,installed certain equipment at the marina pursuant to a contract with Townsend.
Although Pergolizzi conceded that he discarded the subject boat, despite a court order tomaintain it for discovery and inspection, the appellants did not demonstrate that, as a result, theyare "prejudicially bereft of the means of prosecuting" their own claims or of defendingthemselves against those claims brought against them by Fossing and Pergolizzi (Weber v Harley-Davidson Motor Co.,Inc., 58 AD3d 719, 722 [2009] [internal quotation marks omitted]; see Kirschen v Marino, 16 AD3d555, 556 [2005]). Therefore, the Supreme Court providently exercised its discretion in, interalia, declining to strike Pergolizzi's complaints as a sanction for spoliation of evidence (seeWeber v Harley-Davidson Motor Co., Inc., 58 AD3d at 722; E.W. Howell Co., Inc. v S.A.F. La SalaCorp., 36 AD3d 653, 654-655 [2007]; Klein v Ford Motor Co., 303 AD2d 376,377 [2003]). A lesser sanction, however, was warranted, given the appellants' inability to attemptto establish from an inspection of the boat that the fire at issue was caused by some defect of theboat. Therefore, the Supreme Court should have granted those branches of the appellants' motionand cross motion which were to impose a sanction for the spoliation of evidence to the extent ofdirecting Pergolizzi to disclose all of the information he has regarding the subject boat,including, among other things, any data, tests, and analyses he performed, precluding Pergolizzifrom arguing or presenting evidence at trial that the subject boat was not the cause of the fire atissue, and directing that the appellants are entitled to an adverse inference charge as to thedefective condition of the boat (seeTapia v Royal Tours Serv., Inc., 67 AD3d 894 [2009]; Weber v Harley-DavidsonMotor Co., Inc., 58 AD3d at 722-723; Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717, 719 [2009];Yechieli v Glissen Chem. Co., Inc.,40 AD3d 988, 989 [2007]).
We note that any contentions raised by Fossing on behalf of Pergolizzi have not beenconsidered because her contentions are not properly before this Court.
The appellants' remaining contentions are without merit. Rivera, J.P., Santucci, Eng andChambers, JJ., concur.