Decided on September 14, 2009.
Law Offices of James J. Killerlane, P.C., Attorneys for Plaintiff in Action #1, White Plains, New York.
James C. Miller, Esq., Attorney for Defendant in Action #1 and #2, Wenig Wenig, Attorneys for Plaintiffs in Action #3, New York, New York.
The following papers numbered 1 through 7 were read and considered on this motion brought by defendant Costco Wholesale Corporation (hereinafter "Costco") for an Order dismissing the complaints in Actions #1 and #3, pursuant to CPLR § 3126, for spoliation of evidence or; in the alternative, for an Order precluding plaintiff from submitting expert testimony at trial based upon his inspection of the vehicle; or in the alternative for an Order, pursuant to CPLR 3212, granting summary judgment on the issue of liability to the defendant; and on this cross-motion by plaintiff, Michael Scordo (hereinafter "Scordo") for an Order, pursuant to CPLR 3212, granting him partial summary judgment on the issue of liability:
(1) Notice of Motion-Affidavit; Exhibits A-Y;
(2) Memorandum of Law in Support of Motion;
(3) Notice of Cross-Motion-Affirmation; Exhibits A — O;
(4) Affidavit to Cross-Motion;
(5) Affirmation in Opposition to Motion/in Support of Cross-Motion;
(6) Reply Affidavit; and
(7) Reply Affirmation; Exhibits A — E.
The parties oppose each other's respective motions. Upon the foregoing papers, the defendant's motion is denied and the plaintiff's cross-motion is denied.
This is an action, inter alia, for personal injuries. The plaintiff alleges defendant's employees negligently replaced and rotated the tires on his vehicle on March 24, 2004, thereby causing a tire to shear off his vehicle on May 10, 2004.
The defendant moves to dismiss the plaintiff's complaints in Actions #1 and #3 for plaintiff's alleged failure to preserve the vehicle for inspection. Alternatively, the defendant seeks an order precluding the plaintiff from introducing any expert testimony at trial of any inspection of the vehicle; or precluding any testimony or evidence at trial concerning the defendant's alleged negligent tire replacement on the plaintiff's vehicle; or granting the defendant summary judgment based upon the argument that it did not create the alleged condition or proximately cause plaintiff's car accident. The plaintiff cross-moves for partial summary judgment on the issue of liability.
On March 24, 2005, defendant served the plaintiff with a notice to preserve the vehicle, a 2003 Mini S. Cooper and all component parts for the duration of the lawsuit. On that date, defendant also served the plaintiff with a request to produce the 2003 Mini S. Cooper and for any component parts to be inspected and photographed. On March 1, 2006, the plaintiff's retained expert inspected the subject vehicle. On September 25, 2008, the plaintiff served the defendant with a copy of the report of his expert engineer, George Meinschein. The defendant alleges that this report came after the plaintiff was ordered to provide expert disclosure on at least eleven (11) occasions over the course of three (3) years, and one month after plaintiff traded in the vehicle. The defendant argues that 1) the plaintiff was required to preserve the vehicle for the duration of this litigation; 2) the plaintiff permitted his expert to inspect the vehicle; 3) the plaintiff sold the vehicle prior to serving his expert report; 4) the plaintiff never offered the defendant an opportunity to inspect the vehicle before selling it; and (5) the defendant is prevented from now hiring its own expert to make an inspection of the vehicle. The defendant further argues that the plaintiff destroyed essential and key physical evidence, thereby prejudicing it from preparing a defense.
In opposition, the plaintiff argues that his attorney sent a letter dated March 31, 2005 addressed to defendant's counsel acknowledging receipt of the defendant's notices to produce and preserve and requested that defendant advise when it needed its' expert/representative to inspect the vehicle. Additionally, plaintiff's counsel sent a letter to defense counsel dated October 31, 2008, which advised plaintiff that possession of the vehicle was turned over to Prestige Mini in 2008 and that Prestige Mini repaired the vehicle after the accident. Accompanying that letter was an authorization for defendant to obtain a copy of the repair records. Plaintiff accordingly argues that defendant had from March 31, 2005 to August 1, 2008 to retain an expert to inspect, examine and/or photograph the vehicle and did not do so. Additionally, the defendant did not complain about plaintiff's dispossession of the vehicle from October 31, 2008 until April 10, 2009, the date the defendant's motion was served. Plaintiff further argues that the defendant has not been prejudiced by plaintiff's delay in answering the defendant's discovery request for an expert, as the defendant was put on notice of plaintiff's contentions from his Verified Bill of Particulars and other discovery responses which were served by the plaintiff on or about March 9, 2006. In sum, the plaintiff alleges that it is defendant's own malfeasance in failing to retain an expert that prevented it from inspecting the subject vehicle before it was turned over to Prestige Mini. Moreover, plaintiff argues that, in doing so, the defendant waived the right to perform the inspection since it did not move to vacate the plaintiff's Note of Issue which was served and filed on February 11, 2009.
Under the common-law doctrine of spoliation, a party may be sanctioned by the striking of its' pleading for the intentional destruction of key evidence, which thereby deprives the other party from proving its' claim or defense. See Ingoglia v. B N College Booksellers, Inc., 48 AD3d 636 (2d Dept. 2008) quoting Baglio v. St. John's Queens Hosp., 303 AD2d 341 (2d Dept. 2003). The determination of spoliation sanctions is within the broad discretion of the court. See Holland v. W.M. Realty Management, Inc ., 64 AD3d 627 (2d Dept. 2009) citing Iannucci v. Rose , 8 AD3d 437 (2d Dept. 2004); See also Denoyelles v. Gallagher , 40 AD3d 1027 (2d Dept. 2007). The record demonstrates that defendant was given approximately three and a half (3 ½) years to inspect the vehicle before it was disposed. Thus, the court finds that the defendant had more than reasonable time to retain an expert for the purposes of inspecting the vehicle in its preparation of a defense. Unlike the underlying facts in Cabasso v. Goldberg, 288 AD2d 116 (1st Dept. 2001), there are no allegations in the record that the plaintiff somehow obstructed, denied or prevented the defendant from giving its' expert access to the subject vehicle. In contrast to the facts in Cabasso v. Goldberg, supra, the plaintiff notified the defendant that the vehicle was available for inspection in March 2005. Yet the defendant failed to do so. In addition, in a preliminary conference stipulation and order dated September 13, 2005 the defendant reserved its' right to discovery and physical inspection of the vehicle, yet the defendant did not do so over the course of the next three (3) years. The court finds that defendant was not deprived of an opportunity to inspect the vehicle. See Jimenez v. Weiner , 8 AD3d 133 (1st Dept. 2004). Therefore, the court finds no evidence that plaintiff acted willfully, contumaciously or in bad faith. See Iannucci v. Rose, supra. If the defendant is deprived of establishing certain defenses, it is of its' own doing.
As to the parties' respective motions for summary judgment, it is well settled that the granting of summary judgment is an extreme and extraordinary form of relief which is only warranted when the admissible evidence adduced leaves no unresolved question of fact in the movant's favor. See Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). However, "on the other hand, the court should not hesitate to give this remedy the full purpose for which it is intended". See Wanger v. Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729 (3d Dept. 1966).
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Id. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Id. citing Zuckerman v. City of New York, 49 NY2d 557 (1980).
The court finds that there are issues of fact which preclude summary judgment, specifically as to whether the defendant created any negligent condition.
Accordingly, upon the foregoing papers, the defendant's motion is denied in its entirety and the plaintiff's cross-motion for summary judgment on the issue of liability is also denied.
This constitutes the Decision and Order of the court.