| Scordo v Costco Wholesale Corp. |
| 2010 NY Slip Op 07324 [77 AD3d 725] |
| October 12, 2010 |
| Appellate Division, Second Department |
| Michael Scordo, Respondent-Appellant, v Costco WholesaleCorporation, Doing Business as COSTCO, Appellant-Respondent.(Action No. 1.) National BenFranklin Insurance Company of Illinois, as Subrogee of Michael Scordo et al., Respondents, v CostcoWholesale Corporation, Appellant. (Action No. 3.) |
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In related actions, which were joined for trial, to recover damages for personal injuries, etc., thedefendant Costco Wholesale Corporation, doing business as COSTCO, appeals, as limited by itsnotice of appeal and brief, from so much of an order of the Supreme Court, Westchester County(DiBella, J.), dated September 15, 2009, as denied those branches of its motion which were pursuantto CPLR 3126 to strike the complaints in actions Nos. 1 and 3 due to spoliation of evidence or, in thealternative, to preclude the plaintiffs in actions Nos. 1 and 3 from submitting certain evidence or, in thealternative, for summary judgment dismissing the complaints in actions Nos. 1 and 3, and the plaintiff inaction No. 1 cross-appeals, as limited by his notice of appeal and brief, from so much of the sameorder as denied his cross motion in that action for summary judgment on the issue of liability.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs ordisbursements.
The plaintiff Michael Scordo allegedly was injured on May 10, 2004, when the front-left wheel ofthe vehicle he was driving separated from the car, causing him to lose control of the vehicle and traveldown an embankment. Scordo commenced an action against the defendant Costco WholesaleCorporation, doing business as COSTCO (hereinafter the defendant), to recover damages for hisinjuries, alleging, inter alia, that, on March 24, 2004, the defendant negligently serviced and replacedthe tires on the car and proximately caused the accident. Subsequently, the plaintiff National BenFranklin Insurance Company of Illinois commenced an action, as subrogee of Michael Scordo and[*2]his parents, Anthony Scordo and Anne Scordo, against thedefendant. In March 2005, in response to the defendant's notice to produce and preserve the vehicle,Scordo, through his attorney, advised the defendant that the car was available for inspection. Thedefendant did not inspect the vehicle and Scordo sold the car in August of 2008.
The Supreme Court providently exercised its discretion in denying that branch of the defendant'smotion which was to strike the plaintiffs' respective complaints due to spoliation of evidence. "The partyrequesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally ornegligently disposed of critical evidence, and fatally compromised its ability to defend [the] action" (Utica Mut. Ins. Co. v Berkoski Oil Co., 58AD3d 717, 718 [2009] [internal quotation marks omitted]; see Kirschen v Marino, 16 AD3d 555, 555-556 [2005]). "Generally,striking a pleading is reserved for instances of willful or contumacious conduct" (Dean v Usine Campagna, 44 AD3d603, 605 [2007]; see De Los Santos vPolanco, 21 AD3d 397, 398 [2005]). Here, the defendant failed to establish that the plaintiffsacted willfully or contumaciously in disposing of the car. The plaintiffs made the car available forinspection, and the defendant failed to inspect it for more than three years (see Seda v Epstein, 72 AD3d 455[2010]; Jimenez v Weiner, 8 AD3d133 [2004]; cf. Thornhill v A.B. Volvo, 304 AD2d 651, 652 [2003]; Cabasso vGoldberg, 288 AD2d 116 [2001]).
Furthermore, although the sanction of striking a pleading may be imposed even absent willful orcontumacious conduct if a party has been so prejudiced that dismissal is necessary as a matter offundamental fairness (see Dean v Usine Campagna, 44 AD3d at 605; De Los Santos vPolanco, 21 AD3d at 398; Iannucci vRose, 8 AD3d 437, 438 [2004]), such is not the case here, where the defendant serviced thevehicle several weeks prior to the accident and is presumably in possession of any records or otherevidence necessary to defend against the allegation that it negligently serviced or replaced the vehicle'stires (see Lawson v Aspen Ford, Inc., 15AD3d 628, 629 [2005]; Maliszewska v Potamkin N.Y. LP Mitsubishi Sterling, 281AD2d 353 [2001]). Moreover, the loss of the opportunity to inspect the vehicle did not deprive thedefendant of the means of establishing its defense in this case, in part because there was other evidenceas to the postaccident condition of the car (see Mylonas v Town of Brookhaven, 305 AD2d561, 563 [2003]; Marro v St. Vincent's Hosp. & Med. Ctr. of N.Y., 294 AD2d 341 [2002];Chiu Ping Chung v Caravan Coach Co., 285 AD2d 621 [2001]).
Additionally, the Supreme Court providently exercised its discretion in denying that branch of thedefendant's motion which was to impose lesser sanctions of precluding evidence of the condition of thecar at the time of the accident or precluding testimony of the plaintiffs' expert. Evidence as to thecondition of the car at the time of the accident was readily available to both parties. Further, theconclusions contained in the plaintiffs' expert report were not based upon an inspection of the vehicle.As such, the plaintiffs did not obtain an unfair advantage from their failure to preserve the car (seeGallo v Bay Ridge Lincoln Mercury, 262 AD2d 450, 451 [1999]).
The Supreme Court properly denied that branch of the defendant's motion which was for summaryjudgment dismissing the complaints in actions Nos. 1 and 3. The defendant failed to establish that it wasnot negligent in servicing the car and, thus, failed to make a prima facie showing of its entitlement tojudgment as a matter of law (see Gallo v Bay Ridge Lincoln Mercury, 262 AD2d 450 [1999];Retz v Alco Equip., 259 AD2d 898 [1999]; Van Patten v U.S. Truck Body Co., 176AD2d 1095, 1096 [1991]; cf. Krolak vDubicki, Inc., 1 AD3d 318 [2003]; Pollock v Toyota Motor Sales U.S.A., 222AD2d 766, 767-768 [1995]; Duprey v Drake, 182 AD2d 1015, 1015-1016 [1992]).Accordingly, we need not examine the sufficiency of Scordo's opposition papers (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]).
The Supreme Court also properly denied that branch of Scordo's motion which was for summaryjudgment on the issue of liability. To rely on the doctrine of res ipsa loquitur, a plaintiff mustdemonstrate that (1) the injury is of a kind that does not occur in the absence of someone's negligence,(2) the injury is caused by an agency or instrumentality within the exclusive control of the defendants,and (3) the injury is not due to any voluntary action on the part of the injured plaintiff (see Morejon v Rais Constr. Co., 7 NY3d203, 209 [2006]; States v Lourdes Hosp., 100 NY2d 208, 211-212 [2003];Kambat v St. Francis Hosp., 89 NY2d 489, 494-495 [1997]; Corcoran v Banner SuperMkt., 19 NY2d 425, 430 [1967]). Here, the evidence raised a triable issue of fact as to theapplicability of the doctrine of res ipsa loquitur particularly as to the second element of the doctrine(see Morejon v Risa Constr. Co., 7 NY3d at 209). Moreover, the conclusion of the plaintiffs'expert that the vehicle's wheel separated [*3]from the car duringoperation due to the defendant's failure to properly remove any dirt, grease residue, or rust from thesurface of the brake disc that connects with the alloy wheel was speculative and, therefore, without anyprobative value (see Romano v Stanley, 90 NY2d 444, 452 [1997]; Amatulli v DelhiConstr. Corp., 77 NY2d 525, 533-534 n 2 [1991]; Poelker v Swan Lake Golf Corp., 71 AD3d 857, 858 [2010]; Santoni v Bertelsmann Prop., Inc., 21 AD3d712, 714-715 [2005]; Cappolla v City of New York, 302 AD2d 547 [2003]).Accordingly, the Supreme Court properly denied that branch of Scordo's motion which was forsummary judgment on the issue of liability. Covello, J.P., Leventhal, Hall and Roman, JJ., concur.