| Mahiques v County of Niagara |
| 2016 NY Slip Op 02190 [137 AD3d 1649] |
| March 25, 2016 |
| Appellate Division, Fourth Department |
[*1]
| Frank J. Mahiques et al.,Respondents, v County of Niagara et al., Defendants, and IGT,Appellant. |
Rupp Baase Pfalzgraf Cunningham LLC, Buffalo (R. Anthony Rupp, III, ofcounsel), for defendant-appellant.
Bouvier Partnership, LLP, Buffalo (Norman E.S. Greene of counsel), forplaintiffs-respondents.
Appeal from a revised final judgment of the Supreme Court, Erie County (Joseph R.Glownia, J.), entered May 6, 2015 in a personal injury action. The revised finaljudgment, among other things, awarded plaintiffs the sum of $187,500.
It is hereby ordered that the revised final judgment so appealed from is unanimouslyvacated, the order entered July 10, 2012 is vacated and the order entered March 22, 2012is modified on the law by vacating the sanctions imposed, the answer of defendant IGT isreinstated, and plaintiffs are granted an adverse inference charge against defendant IGTas a sanction for the spoliation of evidence, and as modified the order is affirmed withoutcosts in accordance with the following memorandum: Plaintiffs commenced this actionseeking damages for injuries allegedly sustained by Frank J. Mahiques (plaintiff) whenhe was struck by a pane of glass that fell from a video slot machine at a casino. Plaintiffsmoved, inter alia, to strike defendant IGT's answer as a sanction for spoliation withrespect to the destruction of the machine. Supreme Court granted the motion and, assanctions, struck IGT's answer and granted plaintiffs partial summary judgment onliability (March order). In a later order (July order), the court denied IGT's motion for,inter alia, leave to renew its opposition to plaintiffs' motion for spoliation sanctions. IGTnow appeals from the ensuing judgment, which brings up for review the March order andthe July order (see CPLR 5501 [a] [1]). We agree with IGT that the court abusedits discretion in its choice of sanctions.
Although we agree with plaintiffs that a spoliation sanction was warranted, under thecircumstances presented we conclude that the court abused its discretion in striking IGT'sanswer and granting plaintiffs partial summary judgment on liability. The accidentoccurred on December 16, 2005, and plaintiff commenced this action in 2007 against theJohn Doe Corporation and several other defendants, including the Seneca Nation ofIndians, the Seneca Gaming Corporation, and the Seneca Gaming Authority (collectively,casino defendants), who owned and operated the casino at issue. The action wasdismissed against the casino defendants based on their sovereign immunity, which is notat issue in this appeal. IGT was substituted as a defendant in place of John DoeCorporation, and was served with the "supplemental complaint" (complaint) in 2008,which alleged, inter alia, that IGT negligently designed, manufactured, marketed, sold,and serviced the subject machine. Plaintiffs did not request that IGT maintain thecondition of the subject machine until August 2010, however, and they did not seek toexamine it until 2011. IGT then informed plaintiffs that the machine was one of severalvideo slot machines that had been removed from the casino in 2008 at the casinodefendants' request to create more open space in the casino, and that the subject machineand approximately 140 other machines were scrapped in the normal course of business inJune 2008.
" 'Under the common-law doctrine of spoliation, when a party negligentlyloses or [*2]intentionally destroys key evidence, theresponsible party may be sanctioned under CPLR 3126' . . . 'The SupremeCourt has broad discretion in determining what, if any, sanction should be imposed forspoliation of evidence' . . . It may, under appropriate circumstances, imposea sanction 'even if the destruction occurred through negligence rather than wilfulness,and even if the evidence was destroyed before the spoliator became a party, provided [theparty] was on notice that the evidence might be needed for future litigation'. . . The nature and severity of the sanction depends upon a number offactors, including . . . the knowledge and intent of the spoliator, theexistence of proof of an explanation for the loss of the evidence, and the degree ofprejudice to the opposing party" (Samaroo v Bogopa Serv. Corp., 106 AD3d 713, 713-714[2013]). Although a court may, as one of the possible sanctions for spoliation ofevidence, enter "an order striking out pleadings or parts thereof" (CPLR 3126 [3]),"[g]enerally, striking a pleading is reserved for instances of willful or contumaciousconduct" (Dean v UsineCampagna, 44 AD3d 603, 605 [2007]). In instances in which a party negligentlyloses or destroys evidence, the "party seeking a sanction pursuant to CPLR 3126 such as. . . dismissal is required to demonstrate that a litigant . . .negligently[ ] dispose[d] of crucial items of evidence . . . before theadversary ha[d] an opportunity to inspect them . . . , thus depriving the partyseeking a sanction of the means of proving his [or her] claim or defense. The gravamenof this burden is a showing of prejudice" (Koehler v Midtown Athletic Club, LLP, 55 AD3d 1444,1445 [2008] [internal quotation marks omitted]; see Simet v Coleman Co., Inc., 42 AD3d 925, 926[2007]).
Here, we conclude that plaintiffs established that some sanction is warranted becauseIGT negligently failed to preserve the machine, but plaintiffs failed to show that thedestruction of the machine was intentional or contumacious, to warrant the sanctionsimposed by the court. To the contrary, the only evidence in the record concerning thisissue is that IGT scrapped the machine in the normal course of business, as part of theremoval and destruction of a large number of machines to create additional space in thecasino. In addition, IGT established that the machine was removed from the casino at therequest of the casino's owners, who were no longer parties to this action, which beliesplaintiffs' contention that IGT removed and destroyed the machine for litigationpurposes.
Contrary to plaintiffs' further contention, they failed to establish that the machine wasdestroyed before they had an opportunity to inspect it, and thus plaintiffs failed toestablish that the extreme sanctions of striking IGT's answer and granting plaintiffspartial summary judgment on liability against IGT were warranted (see Koehler,55 AD3d at 1445). The evidence in the record establishes that plaintiffs did not requestthat the machine be preserved or attempt to view it in the two years after the accident andprior to the commencement of the action (see Piazza v Great Atl. & Pac. TeaCo., 300 AD2d 381, 382 [2002]; cf. Gitlitz v Latham Process Corp., 258AD2d 391, 391 [1999]), nor did they do so in the ensuing year between when the actionwas commenced and the machine was scrapped. Indeed, plaintiffs did not seek toexamine the machine for an additional two years after IGT was joined as a defendant.Consequently, we conclude that IGT's destruction of the machine did not occur "beforethe adversary ha[d] an opportunity to inspect" it (Koehler, 55 AD3d at 1445[internal quotation marks omitted]; see Rios v Johnson V.B.C., 17 AD3d 654, 656 [2005]; see also Russo v BMW of N. Am.,LLC, 82 AD3d 643, 644 [2011]). Thus, although IGT was properly sanctionedbecause it was negligent in failing to ensure that the machine was preserved once it wason notice that it might be needed for litigation (see Iannucci v Rose, 8 AD3d 437, 438 [2004];DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, 53 [1998]), thereis no evidence that it was destroyed before plaintiffs had an opportunity to inspect it, towarrant the severe sanctions that the court imposed.
We also agree with IGT that the destruction of the machine did not deprive plaintiffsof the ability to establish their causes of action, and thus they did not make the requisiteshowing of prejudice arising from the loss of the evidence to warrant the extremesanctions imposed by the court (see Koehler, 55 AD3d at 1445). We rejectplaintiffs' contention that the destruction of the machine deprived them of the ability topresent a prima facie case on any of their causes of action, most notably their strictproducts liability claim based on a manufacturing defect. A necessary element of thatclaim is that the product was defective when it left the manufacturer's control (seeRosado v Proctor & Schwartz, 66 NY2d 21, 25-26 [1985]; Nichols vAgway, Inc., 280 AD2d 889, 889-890 [2001]; George Larkin Trucking Co. vLisbon Tire Mart, 210 AD2d 899, 900 [1994]). Given the length of time from themanufacturing date to the date of the accident, as well as the additional length of timefrom the date of the accident to the date on which plaintiffs first sought access to themachine, we conclude that plaintiffs failed to establish that their ability to prove [*3]their case was severely impaired by the destruction of themachine rather than by the passage of time and the adjustments that were made to themachine in the interim. Indeed, the evidence submitted by both parties with respect to themotion establishes that the machine was repaired immediately after the accident, and thus"there was no possibility of inspecting [the glass] as [it] had been installed at the time ofthe accident" (Merrill v ElmiraHgts. Cent. School Dist., 77 AD3d 1165, 1167 [2010]). Furthermore, we notethat, in addition to a video recording of the glass falling on plaintiff, plaintiffs alsopossessed reports of similar accidents involving identical machines in other locations.Plaintiffs thus had available circumstantial evidence in support of their manufacturingdefect claim, which they may use in support of that claim (see Speller v Sears,Roebuck & Co., 100 NY2d 38, 41-42 [2003]). That evidence may also be usedby plaintiffs to attempt to establish the remaining causes of action in the complaint. Thus,the level of prejudice to plaintiffs based on the destruction of the machine was notsufficiently " 'severe' " to warrant striking IGT's answer and grantingplaintiffs partial summary judgment on liability (Kirschen v Marino, 16 AD3d 555, 556 [2005]).
Instead, we conclude that, under the circumstances of this case, " 'the courtshould have considered a less severe sanction, which we now provide' . . .We conclude that an adverse inference charge against [IGT] is an appropriate sanctionfor the spoliation of evidence" (Tomasello v 64 Franklin, Inc., 45 AD3d 1287, 1288[2007]; see Koehler, 55 AD3d at 1445; Ifraimov v Phoenix Indus. Gas, 4 AD3d 332, 334[2004]; see generally Ortega vCity of New York, 9 NY3d 69, 76 [2007]), and we therefore modify the Marchorder accordingly. Present—Whalen, P.J., Smith, Centra, Carni and Scudder,JJ.