| Neve v City of New York |
| 2014 NY Slip Op 03809 [117 AD3d 1006] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| Anthony Neve, Appellant-Respondent, v Cityof New York et al., Respondents-Appellants. (And Third-Party Actions.) (Appeal No. 1.)Anthony Neve, Plaintiff, v City of New York et al., Defendants/Third-PartyPlaintiffs/Third Third-Party Plaintiffs-Respondents. Johnston Sweeper Company,Third-Party Defendant/Second Third-Party Plaintiff-Appellant-Respondent; Seats, Inc.,Second Third-Party Defendant/Third Third-Party Defendant-Respondent-Appellant.(Appeal No. 2.) |
Stephen A. Harrison, Brooklyn, N.Y., for appellant-respondent in Appeal No. 1.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Elizabeth S.Natrella and Kaye Scholer [Larissa A. Eustice], of counsel), for respondents-appellantsin appeal No. 1 and defendants/third-party plaintiffs/third third-partyplaintiffs-respondents in appeal No. 2.
Damon Morey, LLP, Buffalo, N.Y. (Vincent G. Saccomando and MichaelL. Amodeo of counsel), for third-party defendant/second third-partyplaintiff-appellant-respondent in appeal No. 2.
Littleton Joyce Ughetta Park & Kelly, LLP, Purchase, N.Y. (James C.Ughetta, Bryon L. Friedman, and Kevin Arias of counsel), for second third-partydefendant/third third-party defendant-respondent-appellant in appeal No. 2.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Kings County (Velasquez,J.), dated May 8, 2012, as denied that branch of his motion which was pursuant to CPLR3126 to impose a sanction upon the defendants for spoliation of evidence to the extent ofstriking the defendants' answer and thereupon awarding summary judgment on thecomplaint; the defendants/third-party plaintiffs/third third-party plaintiffs cross-appeal, aslimited by their brief, from so much of the same order as granted that branch of theplaintiff's motion which was to impose a lesser sanction upon them for spoliation ofevidence and denied their motion for summary judgment dismissing the complaint; thethird-party defendant/second third-party plaintiff separately appeals, as limited by its[*2]brief, from so much of the same order as denied itsmotion for summary judgment dismissing the third-party complaint and the counterclaimof the second third-party defendant/third third-party defendant; and the secondthird-party defendant/third third-party defendant cross-appeals, as limited by its brief,from so much of the same order as denied its motion for summary judgment dismissingthe second third-party complaint and the third third-party complaint, and on its crossclaims against the defendants/third-party plaintiffs/third third-party plaintiffs.
Ordered that the order is affirmed insofar as appealed and cross-appealed from,without costs or disbursements.
In December 2003, the plaintiff, an employee of the defendant City of New YorkDepartment of Sanitation (hereinafter the DOS), was allegedly injured when the seat on astreet sweeper he was operating collapsed. He commenced this action against the DOSand the City of New York (hereinafter together the defendants), alleging negligence intheir maintenance of the street sweeper. The defendants commenced a third-party actionagainst Johnston Street Sweeper, incorrectly named herein as Johnston SweeperCompany (hereinafter Johnston), the manufacturer of the subject street sweeper.Johnston, in turn, commenced a second third-party action against Seats, Inc. (hereinafterSeats), the manufacturer of the seat. The defendants also commenced a third third-partyaction against Seats. The plaintiff was granted leave to file an amended complaint so asto name Johnston and Seats as defendants, based upon causes of action sounding in strictproducts liability, but he has not amended his complaint.
In March 2007, the Supreme Court issued a discovery order, confirming, inter alia,that all parties reserved the right to inspect the street sweeper after the first round ofdepositions was conducted. In October 2007, the street sweeper was produced forexamination by the plaintiff, Johnston, and Seats. However, no metallurgic testing wasdone on a bolt that allegedly broke, and allegedly caused the seat to collapse. In March2009, without providing notice to any of the parties, and before the first round ofdepositions was conducted, the defendants, in the usual course of business, disposed ofthe street sweeper. Upon learning that the street sweeper had been discarded, the plaintiffmoved pursuant to CPLR 3126 to impose a sanction upon the defendants for spoliationof evidence. Johnston and Seats also separately moved for summary judgment dismissingall claims against each of them. In an order dated May 8, 2012, the Supreme Courtdenied the motions of Seats and Johnston, and granted the plaintiff's motion to the extentof precluding the defendants from establishing at trial that they lacked constructivenotice of the defective nature of the bolt and seat, and denied that branch of the plaintiff'smotion which was to strike the defendants' answer. All of the parties appeal orcross-appeal from various portions of the same order.
Under the common-law doctrine of spoliation, a party may be sanctioned where itnegligently loses or intentionally destroys key evidence (see CPLR 3126; Samaroo v Bogopa Serv.Corp., 106 AD3d 713, 713-714 [2013]; Rodman v Ardsley Radiology, P.C., 103 AD3d 871, 872[2013]; Gotto vEusebe-Carter, 69 AD3d 566, 567 [2010]; Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717, 718[2009]). "The nature and severity of the sanction depends upon a number of factors,including, but not limited to, the knowledge and intent of the spoliator, the existence ofproof of an explanation for the loss of the evidence, and the degree of prejudice to theopposing party" (Samaroo v Bogopa Serv. Corp., 106 AD3d at 714).
The determination of the appropriate sanction for spoliation is within the broaddiscretion of the court (seeOrtega v City of New York, 9 NY3d 69, 76 [2007]; Denoyelles v Gallagher, 40AD3d 1027 [2007]). "The party requesting sanctions for spoilation has the burden ofdemonstrating that a litigant intentionally or negligently disposed of critical evidence,and 'fatally compromised its ability to' " prove its claim or defense (UticaMut. Ins. Co. v Berkoski Oil Co., 58 AD3d at 718, quoting Lawson v Aspen Ford, Inc., 15AD3d 628, 629 [2005]).
Here, although the Supreme Court's March 2007 order put the defendants on noticethat the condition of the subject street sweeper was relevant, and that the other partiescould inspect it after the first round of depositions had been conducted, the defendantsdisposed of it without notice to the other parties. There is no suggestion in the record thatthe disposal of the street sweeper [*3]was due to willfulor contumacious behavior on the part of the defendants. Thus, the Supreme Courtcorrectly determined that the drastic remedy of striking the defendants' answer wasunwarranted (see Iannucci vRose, 8 AD3d 437, 438 [2004]; Foncette v LA Express, 295 AD2d 471,472 [2002]). Since that was the only ground upon which the plaintiff sought summaryjudgment on the complaint, the Supreme Court correctly concluded that summaryjudgment should not be awarded to the plaintiff. For the same reason, the Supreme Courtproperly denied summary judgment to Johnston and Seats (cf. Klein v FordMotor Co., 303 AD2d 376, 377 [2003]).
The negligent disposal of the street sweeper prejudiced all of the parties, includingthe defendants. However, there exists other evidence, including photographs taken at theplaintiff's direction shortly after the incident at issue, and the parties may depose theexpert who did inspect the subject street sweeper. Accordingly, the Supreme Courtprovidently exercised its discretion in issuing the specific sanction imposed against thedefendants (cf. Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d at 719; Molinari v Smith, 39 AD3d607, 608 [2007]; De LosSantos v Polanco, 21 AD3d 397, 399 [2005]; Kirschen v Marino, 16 AD3d555, 556 [2005]; Ifraimov vPhoenix Indus. Gas, 4 AD3d 332, 334 [2004]).
Finally, the Supreme Court properly denied the defendants' motion for summaryjudgment dismissing the complaint. Although the defendants established, prima facie,that they did not have actual notice of the alleged defect, as a consequence of thesanction imposed upon them, they cannot demonstrate lack of constructive notice of suchdefect (cf. Russo v Valley Cent.School Dist., 33 AD3d 782 [2006]; Levinstim v Parker, 27 AD3d 698, 700-701 [2006];McKeon v Town of Oyster Bay, 292 AD2d 574, 574 [2002]). In any event, themechanic who conducted routine maintenance on the subject street sweeper testified athis deposition that he did not check under the seat, and the defendants provided noevidence that checking under the seat is not part of routine maintenance. As thedefendants did not establish their prima facie entitlement to judgment as a matter of law,it is unnecessary for us to consider the adequacy of the opposition papers (see Persaud v S & K GreenGroceries, Inc., 72 AD3d 778, 780 [2010]). Rivera, J.P., Austin, Roman andHinds-Radix, JJ., concur.