| Russo v BMW of N. Am., LLC |
| 2011 NY Slip Op 02454 [82 AD3d 643] |
| March 29, 2011 |
| Appellate Division, First Department |
| Robert Russo, Respondent, v BMW of North America,LLC, et al., Appellants. |
—[*1] Bolz, Lovasz, Toth & Ruggiero, PLLC, Lakeville, Massachusetts (Carl Schwartz of counsel),for respondent.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered October 7, 2010,which, insofar as appealed from as limited by the briefs, denied defendants' motion to dismiss thecomplaint pursuant to CPLR 3126 or, in the alternative, to preclude plaintiff from offeringtestimony at trial as to the allegedly spoliated evidence, unanimously affirmed, without costs.
The motion court exercised its discretion in a provident manner in denying defendants'motion. The record shows that defendants failed to establish how an inspection of the subjectvehicle in April of 2010, which is the first time they sought to conduct such an inspection, isrelevant to defending against plaintiffs' claims under the Lemon Law (see GeneralBusiness Law § 198-a).
Defendants also failed to demonstrate that by returning the vehicle as required by the leaseagreement, plaintiff spoliated evidence. The Court of Appeals has stated that "nothing in thelegislative history indicates an intention to require consumers to leave their vehicles in disrepairpending arbitration or trial" (Matter ofDaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 663 [2006]). Defendants urge this Courtto adopt a construction of the Lemon Law that has no textual support and is contrary to thestatute's remedial nature and purpose to protect consumers (id.; Kucher vDaimlerChrysler Corp., 20 Misc 3d 64, 68 [2008] ["it cannot be said that the statute requiresa plaintiff to retain possession of a vehicle as a predicate for relief"]).
Furthermore, although sanctions may be imposed for even negligent spoliation (see e.g.Squitieri v City of New York, 248 AD2d 201, 203 [1998]), striking a pleading is usually notwarranted unless the evidence is crucial and the spoliator's conduct evinces some higher degreeof culpability (see Hall v Elrac, Inc.,79 AD3d 427, 428 [2010]; Baldwinv Gerard Ave., LLC, 58 AD3d 484, 485 [2009]). Here, the undisputed facts showneither. Defendants knew, as early as [*2]December 2008, thatplaintiff's lease agreement terminated in November of 2009, and plaintiff's reply to defendants'interrogatories readily offered defendants the chance to inspect the vehicle. Defendants did notseek to do so until several months after the lease expired and the vehicle was returned.Concur—Mazzarelli, J.P., Saxe, Renwick, DeGrasse and Richter, JJ.