| Pennachio v Costco Wholesale Corp. |
| 2014 NY Slip Op 05165 [119 AD3d 662] |
| July 9, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Anthony S. Pennachio, Sr.,Appellant-Respondent, v Costco Wholesale Corporation,Respondent-Appellant. |
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP,Lake Success, N.Y. (Anthony J. Genovesi, Jr., of counsel), for appellant-respondent.
Thomas M. Bona, P.C., White Plains, N.Y. (James C. Miller ofcounsel), for respondent-appellant.
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 (Bunyan, J.),dated December 5, 2012, as granted his motion to strike the defendant's answer on theground of spoliation of evidence only to the extent of, in effect, directing that an adverseinference charge be given against the defendant at trial, and the defendant cross-appeals,as limited by its notice of appeal and brief, from so much of the same order as granted theplaintiff's motion to strike its answer on the ground of spoliation of evidence to theextent of, in effect, directing that an adverse inference charge be given against it attrial.
Ordered that the order is modified, on the law and on the facts, by adding a provisionthereto directing that an adverse inference charge be given against the defendant at trialonly if the jury credits the opinion of the plaintiff's expert that she could have determinedhow long the subject jar had been broken by analyzing the mold inside of it; as somodified, the order is affirmed insofar as appealed and cross-appealed from, with costs tothe defendant.
The plaintiff allegedly was injured when he reached for a shrink-wrapped, glass jarof olives on a shelf in a store owned by the defendant which, unbeknownst to him, wasbroken. The defendant originally retained the subject jar and marked it as "evidence" notto be discarded. However, according to the defendant, the jar was later discardedinadvertently. After commencing this personal injury action against the defendant, theplaintiff demanded production of the subject jar and, due to its unavailability, moved tostrike the defendant's answer on the ground of spoliation of evidence.
In support of his motion, the plaintiff submitted an affidavit from an expert, averring[*2]that examination of the subject jar, which hadcontained mold at the time of the accident, would have enabled her to render an opinionregarding the length of time the jar had been broken. Specifically, she opined that shecould determine the age of the mold, and thus, the amount of time the contents of the jarhad been exposed to oxygen. The plaintiff contended that this evidence was vital to hisability to prove that the defendant had constructive notice of the allegedly dangerouscondition of the jar (see generally Gordon v American Museum of NaturalHistory, 67 NY2d 836, 837 [1986] ["To constitute constructive notice, a defect. . . must exist for a sufficient length of time prior to the accident to permitdefendant's employees to discover and remedy it"]). In opposition, the defendantsubmitted an affidavit from an expert disputing the ability of the plaintiff's expert toreach an accurate conclusion as to when the jar broke without the jar having been kept,before and after the accident, in a controlled environment.
The Supreme Court granted the motion only to the extent of, in effect, directing thatan adverse inference charge be given against the defendant at trial.
"Under the common-law doctrine of spoliation, 'when a party negligently loses orintentionally destroys key evidence, thereby depriving the non-responsible party frombeing able to prove its claim or defense, the responsible party may be sanctioned by thestriking of its pleading' " (Jennings v Orange Regional Med. Ctr., 102 AD3d 654, 655[2013], quoting Denoyelles vGallagher, 40 AD3d 1027, 1027 [2007]; see Coleman v Putnam Hosp. Ctr., 74 AD3d 1009, 1011[2010]). " 'Recognizing that striking a pleading is a drastic sanction to impose inthe absence of willful or contumacious conduct, courts will consider the prejudice thatresulted from the spoliation to determine whether such drastic relief is necessary as amatter of fundamental fairness' " (Jennings v Orange Regional Med. Ctr.,102 AD3d at 655-656, quoting Iannucci v Rose, 8 AD3d 437, 438 [2004]). "[A] lesssevere sanction or no sanction is appropriate where the missing evidence does notdeprive the moving party of the ability to establish his or her case" (Denoyelles vGallagher, 40 AD3d at 1027; see Jamindar v Uniondale Union Free School Dist., 90 AD3d610 [2011]; Gerber vRosenfeld, 18 AD3d 812 [2005]; Deveau v CF Galleria at White Plains, LP, 18 AD3d 695,696 [2005]).
Initially, contrary to the defendant's contention on its cross appeal, the SupremeCourt did not err in considering the expert affidavit submitted by the plaintiff in asurreply, which he was granted leave to file, since the defendant had an opportunity torespond and filed a surreply, including its own expert affidavit (see Hanscom v Goldman, 109AD3d 964, 965 [2013]; Zernitsky v Shurka, 94 AD3d 875, 876 [2012]; Turturro v City of New York,77 AD3d 732, 734 [2010]; Guarneri v St. John, 18 AD3d 813 [2005]).
Contrary to the plaintiff's contention, the Supreme Court did not improvidentlyexercise its discretion in declining to strike the defendant's answer based upon its loss ofthe subject jar, because the plaintiff failed to show sufficient prejudice to justify thatdrastic remedy. Even assuming that the plaintiff could have determined how long the jarhad been broken by analyzing the mold inside the jar two years after the incident, theplaintiff has other available means of attempting to prove the defendant's constructivenotice of the dangerous condition. Here, the plaintiff contends that photographs of theglass jar taken shortly after the incident depicted mold inside the jar, and the defendant'switness testified at a deposition about such mold. Thus, as relevant to the issue ofconstructive notice, the plaintiff could elicit an opinion from his expert as to how long itwould take for any mold at all to form inside the jar. Therefore, the defendant's failure topreserve the jar did not "fatally compromise[ ]" the plaintiff's ability to prove his case (Gotto v Eusebe-Carter, 69AD3d 566, 568 [2010] [internal quotation marks omitted]; see Jennings vOrange Regional Med. Ctr., 102 AD3d at 656; Coleman v Putnam Hosp.Ctr., 74 AD3d at 1011; Denoyelles v Gallagher, 40 AD3d at 1027; Favishv Tepler, 294 AD2d 396 [2002]).
Addressing the defendant's cross appeal, as the defendant observes, the plaintiff didnot request production of the subject jar until well after commencing the subject action.However, under the circumstances of this case, the defendant was on notice of thepotential need for the evidence in future litigation. In that respect, the defendant's witnesstestified that he retained the jar and marked it as "evidence" not to be thrown away, thusdemonstrating the defendant's notice (see Jamindar v Uniondale Union Free SchoolDist., 90 AD3d at 611; seealso Samaroo v Bogopa Serv. Corp., 106 AD3d 713, 714 [2013]; Lentz v Nic's Gym, Inc., 90AD3d 618 [2011]; Laskin v Friedman, 90 [*3]AD3d 617 [2011]).
While the lesser sanction of an adverse inference may be appropriate for spoliation ofthe subject jar (see Jennings v Orange Regional Med. Ctr., 102 AD3d at 656; Mendez v La Guacatala, Inc.,95 AD3d 1084, 1085 [2012]; Coleman v Putnam Hosp. Ctr., 74 AD3d 1009 [2010]; Molinari v Smith, 39 AD3d607 [2007]), under the circumstances of this case, an issue of fact exists as towhether spoliation of relevant evidence occurred. The sanction of an adverse inferencefor spoliation of evidence is not warranted when the evidence destroyed is not relevant tothe ultimate issues to be determined in the case (see Matter of Eno, 196 App Div131, 162-164 [1921]). As noted above, the plaintiff submitted an expert affidavitaverring that she could have determined how long the jar had been broken by analyzingthe mold contained in the jar, and the defendant submitted an expert affidavit disputingthat such a conclusion could have been reached. If the opinion of the defendant's expertwere credited, then an adverse inference would not be warranted, because the lostevidence would not have been relevant to the plaintiff's case (see Marcano v Calvary Hosp.,Inc., 13 AD3d 109, 110-111 [2004]). Thus, this issue of fact should be placedbefore the jury, along with the inferences to be drawn therefrom (see Krin v Lenox Hill Hosp.,88 AD3d 597 [2011]; Marcano v Calvary Hosp., Inc., 13 AD3d at 110-111;Lawrence Ins. Group v KPMG Peat Marwick, 5 AD3d 918 [2004]; seealso PJI 1:77.1). The jury should be instructed that, if it credits the opinion of thedefendant's expert that no conclusion could have been reached with reasonable certaintyregarding how long the jar had been broken by analyzing the mold contained in the jar,then no adverse inference should be drawn against the defendant. On the other hand, thejury should be advised that, if it credits the opinion of the plaintiff's expert that she couldhave determined how long the jar had been broken by analyzing the mold inside, then itwould be permitted to draw an adverse inference against the defendant (see Krin vLenox Hill Hosp., 88 AD3d at 597; Marcano v Calvary Hosp., Inc., 13 AD3dat 110-111; Lawrence Ins. Group v KPMG Peat Marwick, 5 AD3d 918 [2004]).Skelos, J.P., Lott, Roman and Cohen, JJ., concur.