| Alleva v United Parcel Serv., Inc. |
| 2013 NY Slip Op 08547 [112 AD3d 543] |
| December 24, 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 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 retention and supervision claims, to deny Pitt's motion, and to grantUPS's motion for summary judgment on its claim for contractual indemnification againstPitt, 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, summary judgment in favor of defendant dismissing the negligentretention and supervision claims is not warranted. However, UPS cannot be heldvicariously liable for its employee's assault, since the tort was not committed infurtherance of UPS's interests but was personal in nature (see Kawoya v Pet PantryWarehouse, 3 AD3d 368, 369 [2004], appeal dismissed 2 NY3d 752[2004]; Adams v New York City Tr. Auth., 211 AD2d 285, 294 [1995],affd 88 NY2d 116 [1996]). The agreement between UPS and Pitt provides thatPitt shall indemnify UPS for "any and all claims . . . of any kind or naturewhatsoever related to the Work hereunder," and for "any claims . . . arising. . . out of or in consequence of the work hereunder . . .and any injury suffered by any employee of [Pitt], . . . except [for]losses . . . arising out of the sole negligence of UPS" (emphasis added).Since plaintiff was performing his work as a security guard employed by Pitt when hesustained his injuries, the claim against UPS arises from, and is related to, Pitt's work andfalls within the agreement's broad indemnification provision (see Brown v Two Exch.Plaza Partners, 76 NY2d 172, 178 [1990]; Sovereign Constr. Co. v Wachtel,Dukauer & Fein, 55 NY2d 627 [1981]). Concur—Mazzarelli, J.P., Saxe,DeGrasse and Richter, JJ.
The decision and order of this Court entered herein on January 29, 2013 (102 AD3d573 [2013]) is hereby recalled and vacated (see 2013 NY Slip Op 95379[U][2013] [decided simultaneously herewith]).