| Alleva v United Parcel Serv., Inc. |
| 2013 NY Slip Op 00409 [102 AD3d 573] |
| January 29, 2013 |
| Appellate Division, First Department |
| Ronald Alleva, Appellant, v United Parcel Service,Inc., Respondent/Third-Party Plaintiff-Appellant, et al., Defendant. Pitt Investigations,Inc., Third-Party Defendant-Respondent. |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York (Steven B. Prystowsky of counsel),for United Parcel Service, Inc., respondent/appellant. Churbuck, Calabria, Jones & Materazo, Hicksville (Joseph A. Materazo of counsel),for Pitt Investigations, Inc., respondent.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered May 5, 2011,which denied plaintiff's motion to strike defendant United Parcel Service, Inc.'s (UPS)answer, unanimously affirmed, with costs. Order, same court and Justice, entered May 6,2011, which, to the extent appealed from as limited by the briefs, granted UPS's motionfor summary judgment dismissing the complaint as against it, and granted third-partydefendant Pitt Investigations, Inc.'s motion for summary judgment dismissing the claimfor contractual indemnification, unanimously modified, on the law, to deny UPS's motionas to the negligent hiring, retention and supervision claims, to deny Pitt's motion, and togrant UPS's motion for summary judgment on its claim for contractual indemnificationagainst Pitt, and otherwise affirmed, without costs.
Plaintiff, a security guard employed by defendant Pitt at a UPS distribution center,seeks to recover for injuries he sustained when he allegedly was assaulted by defendantCallwood, a UPS employee, while searching Callwood's belongings.[*2]
UPS's unexplained failure to provide plaintiffwith its "center file" on Callwood, which, inter alia, would document any previousdisciplinary issues, and which UPS's counsel asserted, without elaboration, "no longerexist[s]," constitutes spoliation. The file would be critical in determining whether UPShad notice of Callwood's propensity for violence, an issue central to plaintiff's claims.Plaintiff cannot be faulted for his inability to establish that the missing records containedcritical evidence (see Sage Realty Corp. v Proskauer Rose, 275 AD2d 11, 17[2000], lv dismissed 96 NY2d 937 [2001]). However, the extreme sanction ofstriking UPS's answer—the only relief plaintiff sought—is not warranted,since the center file does not constitute the sole source of the information and the solemeans by which plaintiff can establish his case (see Schantz v Fish, 79 AD3d 481 [2010]; Minaya v Duane Reade Intl.,Inc., 66 AD3d 402 [2009]). A lesser sanction, such as an adverse inferencecharge, if sought, at trial, would be more appropriate.
Accordingly, summaryjudgment in favor of UPS dismissing the negligent hiring, retention and supervisionclaims is not warranted. However, UPS cannot be held vicariously liable for itsemployee's assault, since the tort was not committed in furtherance of UPS's interests butwas personal in nature (seeKawoya v Pet Pantry Warehouse, 3 AD3d 368, 369 [2004], appealdismissed 2 NY3d 752 [2004]; Adams v New York City Tr. Auth., 211AD2d 285, 294 [1995], affd 88 NY2d 116 [1996]).
The agreement between UPS and Pitt provides that Pitt shall indemnify UPS for "anyand all claims . . . of any kind or nature whatsoever related to the Workhereunder," and for "any claims . . . arising . . . out of or inconsequence of the work hereunder . . . and any injury suffered by anyemployee of [Pitt], . . . except [for] losses . . . arising outof the sole negligence of UPS" (emphasis added). Since plaintiff was performing hiswork as a security guard employed by Pitt when he sustained his injuries, the claimagainst UPS arises from, and is related to, Pitt's work and falls within the agreement'sbroad indemnification provision (see Brown v Two Exch. Plaza Partners, 76NY2d 172, 178 [1990]; Sovereign Constr. Co. v Wachtel, Dukauer & Fein, 55NY2d 627 [1981]). Concur—Mazzarelli, J.P., Saxe, DeGrasse, Richter andAbdus-Salaam, JJ.
The decision and order of this Court entered herein on June 19, 2012 (96 AD3d 563[2012]) is hereby recalled and vacated (see 2013 NY Slip Op 62882[U] [2013][decided simultaneously herewith]).
[Recalled and vacated, see 112 AD3d 543.]