Opinion
2014-08-27
Kristin Mangilit–PRADLIK, plaintiff, Anthony J. Pradlik, appellant, v. VALVOLINE INSTANT OIL CHANGE GE6604–WHITE PLAINS, et al., defendants-respondents; et al., nonparty.
Anthony J. Pradlik, White Plains, N.Y., appellant pro se. Gambeski & Frum, Elmsford, N.Y. (Donald J. Frum of counsel), for defendants-respondents.
Anthony J. Pradlik, White Plains, N.Y., appellant pro se. Gambeski & Frum, Elmsford, N.Y. (Donald J. Frum of counsel), for defendants-respondents.
In an action to recover damages for negligence, defamation, and intentional infliction of emotional distress, the plaintiff Anthony J. Pradlik appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (O. Bellantoni, J.), dated December 12, 2012, as denied the plaintiffs' motion for leave to amend the complaint, denied their separate motion pursuant to CPLR 3126 to impose a sanction upon the defendants for spoliation of evidence, and granted those branches of the defendants' cross motion which were for summary judgment dismissing the causes of action to recover damages for defamation and intentional infliction of emotional distress.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in denying the plaintiffs' motion for leave to amend the complaint. “Leave to amend a pleading should be freely given ( seeCPLR 3025[b] ), provided the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit” (Ortega v. Bisogno & Meyerson, 2 A.D.3d 607, 609, 769 N.Y.S.2d 279; see Reyes v. Brinks Global Servs. USA, Inc., 112 A.D.3d 805, 806, 978 N.Y.S.2d 63). Here, the proposed amendments were patently devoid of merit ( see Reyes v. Brinks Global Servs. USA, Inc., 112 A.D.3d at 806, 978 N.Y.S.2d 63; Torres v. Louzoun Enters., 105 A.D.3d 945, 946, 963 N.Y.S.2d 682; see also Vargas v. Crown Container Co., Inc., 114 A.D.3d 762, 764, 980 N.Y.S.2d 500; Pappas v. Passias, 271 A.D.2d 420, 421, 707 N.Y.S.2d 178).
Moreover, it was not an improvident exercise of discretion for the Supreme Court to deny the plaintiffs' separate motion to impose a sanction upon the defendants for spoliation of evidence. “ ‘The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence’ ” (Samaroo v. Bogopa Serv. Corp., 106 A.D.3d 713, 714, 964 N.Y.S.2d 255, quoting Lentz v. Nic's Gym, Inc., 90 A.D.3d 618, 618, 933 N.Y.S.2d 875). “The party requesting sanctions for spoliation of evidence has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised the movant's ability to prove a claim or defense” (Giuliano v. 666 Old Country Rd., LLC, 100 A.D.3d 960, 962, 954 N.Y.S.2d 215; see Mendez v. La Guacatala, Inc., 95 A.D.3d 1084, 1085, 944 N.Y.S.2d 313; Utica Mut. Ins. Co. v. Berkoski Oil Co., 58 A.D.3d 717, 718, 872 N.Y.S.2d 166). “[A] court may impose a sanction less severe than the striking of the responsible party's pleading or no sanction ‘where the missing evidence does not deprive the moving party of the ability to establish his or her case or defense’ ” (Falcone v. Karagiannis, 93 A.D.3d 632, 634, 939 N.Y.S.2d 561, quoting Denoyelles v. Gallagher, 40 A.D.3d 1027, 1027, 834 N.Y.S.2d 868; see Jamindar v. Uniondale Union Free School Dist., 90 A.D.3d 610, 611, 933 N.Y.S.2d 735). Here, the plaintiffs failed to establish that the defendants intentionally or negligently disposed of critical evidence, or that the loss of the evidence fatally compromised their ability to prove their claims ( see Scivoli v. Levit, 79 A.D.3d 1011, 1013, 913 N.Y.S.2d 323).
The Supreme Court properly granted those branches of the defendants' cross motion which were for summary judgment dismissing the causes of action to recover damages for defamation and intentional infliction of emotional distress. As to the cause of action alleging defamation, the defendants made a prima facie showing that the plaintiffs did not suffer any special damages, and that the alleged defamatory statements did not constitute slander per se ( see Liberman v. Gelstein, 80 N.Y.2d 429, 434–435, 590 N.Y.S.2d 857, 605 N.E.2d 344; Zherka v. Gribler, 101 A.D.3d 864, 864, 954 N.Y.S.2d 893; Matherson v. Marchello, 100 A.D.2d 233, 235, 473 N.Y.S.2d 998). Moreover, the defendants established, prima facie, that the acts allegedly committed by employees of the defendant Valvoline Instant Oil Change GE 6604–White Plains did not rise to the level of extreme and outrageous conduct required to sustain a cause of action to recover damages for intentional infliction of emotional distress ( see Curtis–Shanley v. Bank of Am., 109 A.D.3d 634, 635, 970 N.Y.S.2d 830; Baumann v. Hanover Community Bank, 100 A.D.3d 814, 816–817, 957 N.Y.S.2d 111; Waynes v. BJ's Wholesale Club, Inc., 97 A.D.3d 659, 661, 948 N.Y.S.2d 641). In opposition to the defendants' prima facie showing, the plaintiffs failed to raise a triable issue of fact ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).
The plaintiff's remaining contention is without merit. RIVERA, J.P., HALL, SGROI and MALTESE, JJ., concur.