| Jamindar v Uniondale Union Free School Dist. |
| 2011 NY Slip Op 08907 [90 AD3d 610] |
| December 6, 2011 |
| Appellate Division, Second Department |
| Jigar Jamindar, Respondent-Appellant, v Uniondale UnionFree School District et al., Defendants/Third-Party Plaintiffs, and Northgate Electrical,Appellant-Respondent, et al., Defendants. Herrick's Mechanical Corporation, Third-PartyDefendant-Respondent. |
—[*1] Kramer & Pollack, LLP, Mineola, N.Y. (Larry Kramer of counsel), for respondent-appellant. Churbuck Calabria Jones & Materazo, P.C., Hicksville, N.Y. (George Jones and Nicholas P.Calabria of counsel), for third-party defendant-respondent.
In an action to recover damages for personal injuries, the defendant Northgate Electricalappeals from (1) so much of an order of the Supreme Court, Nassau County (Martin, J.), enteredDecember 24, 2009, as granted those branches of the separate cross motions of the plaintiff andthe third-party defendant which were pursuant to CPLR 3126 to impose a sanction upon it forspoliation of evidence to the extent of directing an adverse inference charge against it at trialregarding a scissor lift on which the plaintiff allegedly was injured, and (2) stated portions of anorder of the same court (Sher, J.), entered August 16, 2010, which, inter alia, denied the separatemotions of the plaintiff and the third-party defendant to strike its answer based on spoliation ofevidence, and the plaintiff cross-appeals from stated portions of the same order entered August16, 2010.
Ordered that the appeal by the defendant Northgate Electrical from the order entered August16, 2010, is dismissed, as it is not aggrieved by the portions of the order appealed from (seeCPLR 5511); and it is further,
Ordered that the plaintiff's cross appeal from the order entered August 16, 2010, is dismissedas abandoned; and it is further,
Ordered that the order entered December 24, 2009, is affirmed insofar as appealed from; andit is further,[*2]
Ordered that one bill of costs is awarded to the plaintiffand the third-party defendant payable by the defendant Northgate Electrical.
The plaintiff commenced this action to recover damages for personal injuries he allegedlysustained when he fell approximately 25 feet from the top of a scissor lift owned by thedefendant Northgate Electrical (hereinafter Northgate) while he was removing duct work for hisemployer, the third-party defendant, Herrick's Mechanical Corporation (hereafter Herrick's), froman auditorium of the defendants/third-party plaintiffs Uniondale Union Free School District andUniondale High School, as part of a larger renovation project. The plaintiff alleged, inter alia,that the scissor lift was unsafe and defective. The plaintiff and Herrick's separately cross-moved,inter alia, to impose a sanction upon Northgate for spoliation of evidence as a result ofNorthgate's disposal of the subject scissor lift after Northgate's liability insurance carrierconducted an investigation into the accident, but before commencement of this action. TheSupreme Court granted the cross motions to the extent of directing an adverse inference chargeagainst Northgate at trial.
"When a party negligently [loses] or intentionally destroys key evidence, thereby deprivingthe non-responsible party from being able to prove its claim or defense, the responsible party maybe sanctioned by the striking of its pleading" (Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717, 718 [2009][internal quotation marks omitted]). However, "[w]here the evidence lost is not central to thecase or its destruction is not prejudicial, a lesser sanction, or no sanction, may be appropriate"(Klein v Ford Motor Co., 303 AD2d 376, 377 [2003]; see E.W. Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d 653,654-655 [2007]). A sanction for spoliation of evidence may be warranted even if the evidencewas destroyed before the spoliator became a party to the subject lawsuit, provided it was onnotice that the evidence might be needed for future litigation (see Baglio v St. John's QueensHosp., 303 AD2d 341 [2003]). The Supreme Court is empowered with "broad discretion indetermining the appropriate sanction for spoliation of evidence" (Utica Mut. Ins. Co. vBerkoski Oil Co., 58 AD3d at 718 [internal quotation marks omitted]; see Barahona v Trustees of Columbia Univ.in City of N.Y., 16 AD3d 445, 446 [2005]).
Although the scissor lift was disposed of prior to commencement of this action, the recordshows that Northgate anticipated litigation pertaining to the accident, as evidenced by its promptcommunication to its liability insurance carrier and production of, among other things, photos ofthe scissor lift which it initially refused to provide in response to discovery demands on theground that they were taken in anticipation of litigation. Further, the plaintiff and Herrick'sestablished that their ability to prove their claims in this matter was hampered by Northgate'sdisposal of the scissor lift, as the disposal deprived them of the opportunity to conduct a detailedinspection of the scissor lift. Accordingly, contrary to Northgate's contention, the Supreme Courtprovidently exercised its discretion in directing an adverse inference charge against Northgate attrial as a sanction for the disposal of the scissor lift (see Madkins v State of New York, 82 AD3d 1174, 1174-1175[2011]; Merrill v Elmira Hgts. Cent.School Dist., 77 AD3d 1165 [2010]; Shayovich v 800 Ocean Parkway Apt. Corp., 77 AD3d 814 [2010];Seda v Epstein, 72 AD3d 455[2010]; Minaya v Duane Reade Intl.,Inc., 66 AD3d 402 [2009]; Rodriguez v 551 Realty LLC, 35 AD3d 221 [2006]).
Contrary to Northgate's contention, it is not aggrieved by the portions of the order enteredAugust 16, 2010, appealed from and, therefore, its appeal from that order must be dismissed(see CPLR 5511; Mixon v TBV,Inc., 76 AD3d 144, 148-149 [2010]). Florio, J.P., Hall, Austin and Cohen, JJ., concur.