Opinion
No. 63032.
04-25-2017
David SAFFER and Laura Saffer, Plaintiffs, v. NIAGARA MOHAWK POWER CORPORATION d/b/a National Grid and Time Warner Cable, Inc., Defendants. NGM Insurance Company as Subrogee of David Saffer and Laura Saffer, Plaintiff, Niagara Mohawk Power Corp. d/b/a National Grid, Time Warner Cable Inc., National Grid USA and National Grid USA Service Company Inc., Defendants. NGM Insurance Company as Subrogee of David Saffer and Laura Saffer, Plaintiff, v. Niagara Mohawk Power Corp. d/b/a National Grid, Time Warner Cable Inc., National Grid USA and National Grid USA Service Company Inc., Defendants.
Law Offices of Newell & Klingebiel, Glens Falls (David C. Klingebiel of counsel), for plaintiffs in Action No. 1. Barclay Damon, LLP, Albany (William C. Foster of counsel), for defendant National Grid USA in Action No. 1 and for defendants Niagara Mohawk Power Corporation d/b/a National Grid, National Grid USA and National Grid USA Service Company in Action No. 2. Wilson Elser Moskowitz Edelman & Dicker, LLP, Albany (Christopher J. Martin and Scott H. Stopnik of counsel), for defendant Time Warner Cable, Inc. in Action Nos. 1 and 2. Creedon & Gill, P.C., Northport (Peter J. Creedon of counsel), for plaintiff NGM Insurance Company in Action No. 2.
Law Offices of Newell & Klingebiel, Glens Falls (David C. Klingebiel of counsel), for plaintiffs in Action No. 1.
Barclay Damon, LLP, Albany (William C. Foster of counsel), for defendant National Grid USA in Action No. 1 and for defendants Niagara Mohawk Power Corporation d/b/a National Grid, National Grid USA and National Grid USA Service Company in Action No. 2.
Wilson Elser Moskowitz Edelman & Dicker, LLP, Albany (Christopher J. Martin and Scott H. Stopnik of counsel), for defendant Time Warner Cable, Inc. in Action Nos. 1 and 2.
Creedon & Gill, P.C., Northport (Peter J. Creedon of counsel), for plaintiff NGM Insurance Company in Action No. 2.
ROBERT J. MULLER, J.
Action No. 1 was commenced on August 19, 2016 and involves the direct claim of David and Laura Saffer (hereinafter the homeowners) for fire damages sustained to their home. Action No. 2 was commenced on December 7, 2016 and is a subrogation action by the homeowners' carrier. The actions were consolidated by stipulation filed on January 31, 2017. There has not been extensive discovery.
In action No. 1 the Court is presented with a pre-answer motion on behalf of Time Warner Cable, Inc. (hereinafter TWC) seeking, pursuant to CPLR 3211(a)(1) and (7), dismissal of the third cause of action based upon a theory of spoliation of evidence by the homeowners. Essentially TWC claims that the failure to have afforded them an opportunity to inspect the fire scene when it was still intact has rendered "all critical evidence ... irreparably altered and/or destroyed." TWC also seeks dismissal of the first, third and fifth causes of action which seek punitive and emotional damages in what is essentially a property damage action. Niagara Mohawk Power Corporation d/b/a National Grid (hereinafter National Grid) joins TWC in action No. 1 by cross motion and seeks, pursuant to CPLR 3211(a)(1) and (7), dismissal of the punitive and emotional damage claims. In action No. 2, the Court is presented with a motion on behalf of TWC seeking, pursuant to CPLR 3211(a)(1), (7) and 3126, dismissal of the complaint due to spoliation of evidence. National Grid has made no cross motion in action No. 2.
These actions arise out of three separate fire events that occurred at the homeowners' residence. In November of 1995 the homeowners completed construction of a home, garage and barn on a parcel of real property located at 31 Deerfield Lane in the Town of Bolton, Warren County. The homeowners contracted with National Grid for electrical service, which was supplied by way of three utility poles and elevated transmission lines. These lines crossed the homeowners' property, eventually reaching a utility pole located in close proximity to the home, and then continued underground into the residence. The homeowners contracted with TWC for cable television services, following which TWC affixed television cables to National Grid's poles by following the same path as the transmission lines. On December 12, 2013—nearly two decades later—a fire occurred at the residence resulting in a total loss of the structure and its contents. The homeowners allege that the fire originated in the southwest corner of the basement and was electrical in nature, starting in or around the main service electrical panel box or a generator switch box.
On January 14, 2014, agents of NGM Insurance Company (hereinafter the subrogee) engaged in a joint inspection of the site. Although TWC was not given notice of the inspection the homeowners' opposition includes documentation generated by TWC indicating that some days after this inspection a report concerning this first fire was delivered by them to TWC. The residence was then rebuilt and the homeowners returned on September 19, 2014, at which time the home was substantially complete. National Grid and TWC restored their respective services to the home during this reconstruction in the same fashion as before. The homeowners then enjoyed their home until April 14, 2015, when there was a second fire that—again—resulted in a total loss of the structure and its contents. The homeowners allege that the second fire also originated in the southwest corner of the basement and appeared to be electrical in nature. During reconstruction after the second fire the homeowners lived in a camper/recreational vehicle (hereinafter RV) on the property.
In October of 2015 a third incident occurred in which an exterior TWC television cable connected to the RV sustained damage which was confined to the television cable itself. Neither homeowner alleges any physical injuries in connection with any of the three fires.
On October 5, 2015 TWC received what it describes as its first notice of a potential claim pertaining to these events and, on November 20, 2015, both National Grid and TWC participated at the fire scene in an inspection.
In action No. 2 the subrogee submits opposition to the spoliation claim that includes an October 5, 2015 notice to TWC concerning a potential claim against it, a Morrison Engineering report describing (and apparently retaining) physical evidence, an undated Warren County Emergency Services seven-page report describing the existence of numerous scene photos, a Morrison Engineering evidence log pertaining to retained physical evidence and numerous photographs which are presumably scene-related. The homeowners submitted opposition in action No. 1 which includes a Morrison Engineering sign in sheet demonstrating a site inspection at which representatives of TWC and National Grid were present on November 20, 2015, a sworn affidavit from Charles O'Brien, Director of Field Operations with TWC in which he asserts—unsupportive of the homeowners' cause—that TWC has been "significantly prejudiced" by not having timely notice that either fire had, as a potentially suspected cause, actions attributable to TWC, and a series of reproduced photographs which presumably depict component parts of an electrical or cable service.
TWC's submissions include a reproduction of the same photographs as supplied by the homeowners. The subrogee's opposing submissions include an assertion that, although TWC was never on notice of the December 2013 fire, there is a pole line agreement with National Grid which will trigger a right of full contractual indemnification to the latter—presumably affording TWC full access to all of the investigations in which National Grid has participated.
There is also a copy of an unsigned specimen pole line agreement submitted as some—however thin—evidence that this is an avenue for TWC to gain all information necessary to defend itself. In a reply affirmation from TWC in action No. 2 there is a signed agreement although, its enforceability is not presently before the Court.
Spoliation
In Pegasus Aviation I, Inc. v. Varig Logistica S.A. (26 N.Y.3d 543 [2015] ) (hereinafter Pegasus ), the rule has been articulated as follows:
"A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense. Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed. On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed materials were relevant to the party's claim or defense" ( id. at 548, 26 N.Y.S.3d 218, 46 N.E.3d 601 [internal quotation marks and citations omitted] ).
Without the need for extensive discussion it is clear at this juncture that the movant has not met the preliminary criteria set forth in Pegasus. TWC, having the burden of proving the relevancy of the missing evidence they claim is critical, has thus far failed to establish a prima facie case for sanctions (see Atiles v. Golub Corp., 141 A.D.3d 1055, 1056 [2016] ; Weiss v. Bellevue Maternity Hosp., 121 A.D.3d 1480, 1481 [2014] ; see also Golan v. North Shore–Long Is. Jewish Health Sys., Inc., 147 AD3d 1031, ––––, 48 N.Y.S.2d 216, 218 [2017] ). This is not to suggest that TWC is required to accept the assurances that missing physical evidence would not aid in its defense—merely that at this stage of the litigation it is unclear (1) that prejudice to TWC abounds; (2) that there is a an actual loss of evidence; and (3) whether that loss was either intentional or negligent. Even in the absence of prejudice this Court still retains broad discretion to provide
"proportionate relief to the party deprived of the lost evidence, such as precluding proof favorable to the spoliator to restore balance to the litigation, requiring the spoliator to pay costs to the injured party associated with the development of replacement evidence, or employing an adverse inference instruction at the trial of the action" ( Ortega v. City of New York, 9 N.Y.3d 69, 76 [2007] ).
This proportionate relief may also include the ultimate sanction of dismissing the action—as is sought in this early posture (see id. ).
While the Court will agree that the homeowners and their representatives "had an obligation to preserve the allegedly defective equipment for all parties to inspect [and] had the authority, means and opportunity to safeguard the equipment" ( Standard Fire Ins. Co. v. Federal Pac. Elec. Co., 14 A.D.3d 213, 217 [2004] ), it is not clear on this record—and at this juncture—that they have failed to do so.
Lingering briefly on this topic, the Court cannot fail to observe that if the items alleged to be missing or altered are as critical as the movant claims, then the homeowners and the subrogee (and perhaps National Grid) may be just as hobbled—or perhaps more so—in establishing their claims against TWC.
TWC's motions for spoliation sanctions in action Nos. 1 and 2 are denied as premature, with leave to renew upon further discovery.
Emotional and Punitive Damages
Having disposed of TWC's motions for sanctions, that which remains before the Court are TWC and National Grid's claims that the homeowners have failed to state causes of action for emotional and punitive damages.
"On a motion to dismiss for failure to state a cause of action, [the Court] must ‘afford the pleadings a liberal construction, accept the facts alleged therein as true, accord the plaintiffs the benefit of every possible inference and determine whether the facts alleged fit within any cognizable legal theory’ " ( Nelson v. Capital Cardiology Assoc., P.C., 97 A.D.3d 1072, 1073 [2012], quoting Matter of Upstate Land & Props., LLC v. Town of Bethel, 74 A.D.3d 1450, 1452 [2010] ).
Turning first to the homeowners' claim for emotional damages, the general rule is that "damages may not be recovered for mental distress caused by [the] malicious or negligent destruction [of property]" ( Fowler v. Town of Ticonderoga, 131 A.D.2d 919, 921 [1987] ; see Muzio v. Brown, 302 A.D.2d 505, 506 [2003] ; Biondo v. Linden Hill United Methodist Cemetery Corp., 280 A.D.2d 570, 571 [2001] ; Stanley v. Smith, 183 A.D.2d 675, 676 [1992] ; Jensen v. Whitford Co., 167 A.D.2d 826, 826 [1990] ). This rule remains applicable irrespective of whether the property is a pet (see Fowler v. Town of Ticonderoga, 131 A.D.2d at 921, 516 N.Y.S.2d 368 ), a vehicle (see Muzio v. Brown, 302 A.D.2d at 506, 755 N.Y.S.2d 278 ; Stanley v. Smith, 183 A.D.2d at 676, 584 N.Y.S.2d 60 ) or even a grave stone in a cemetery (see Biondo v. Linden Hill United Methodist Cemetery Corp., 280 A.D.2d at 571, 720 N.Y.S.2d 558 ). Even in the context of the loss of a pet, it has been observed that "[t]he extension of such thinking would permit recovery for mental stress caused by the malicious or negligent destruction of other personal property, i.e., a family heirloom or prized school ring" ( Johnson v. Douglas, 187 Misc.2d 509, 511, 723 N.Y.S.2d 627 [Sup Ct, Nassau County 2001] ). This Court finds that claims for emotional damages in a property damage action are simply not a recognized cause of action in this State.
Insofar as punitive damages are concerned, these damages "are not to compensate the injured party but rather to punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future" ( Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 489 [2007] ). Such damages are "permitted when the defendant's wrongdoing is not simply intentional but ‘evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations' " ( id. at 489, 836 N.Y.S.2d 509, 868 N.E.2d 189, quoting Walker v. Sheldon, 10 N.Y.2d 401, 405 [1961] ; accord Xiaokang Xu v. Xiaoling Shirley He, 147 A.D.3d 1223, 1225 [2017] ). Punitive damages are thus available in a tort action where the wrong is intentional or deliberate, has circumstances of aggravation or outrage, has a fraudulent or evil motive or is in such conscious disregard of the rights of another that it is deemed willful and wanton (see Prozeralik v. Capital Cities Communications, 82 N.Y.2d 466, 479 [1993] ; Prosser and Keeton, Torts § 2 at 9–10 [5th ed 1984] ). Here, it may be for the jury to decide whether the conduct of TWC and, or National Grid was so reprehensible as to warrant punitive damages (see Nardelli v. Stamberg, 44 N.Y.2d 500, 503 [1978] ["[w]hether to award punitive damages in a particular case, as well as the amount of such damages, if any, are primarily questions which reside in the sound discretion of the original trier of the facts" (citations omitted) ]; see also Loughry v. Lincoln First Bank, 67 N.Y.2d 369, 378 [1986] ; AT & T Info. Sys. v. McLean Bus. Servs., 175 A.D.2d 652, 653 [1991] ). There simply is not enough in the record for the Court to determine that punitive damages cannot be awarded as a matter of law. The motions of TWC and National Grid to dismiss the homeowners' claims for punitive damages are therefore denied without prejudice.
TWC and National Grid may renew this aspect of their motions at the conclusion of all discovery or the homeowners' proof at trial.
Following extensive oral argument on April 21, 2017 the within constitutes the Decision and Order of the Court.
Any relief not specifically addressed herein has nonetheless been considered and is expressly denied.
The original of this Decision and Order has been filed by the Court together with the submissions referenced below. Counsel for TWC is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry on all other parties in accordance with CPLR 5513.
Papers reviewed in Action No. 1:
1. Notice of Motion dated December 2, 2016 on behalf of Time Warner Cable, Inc.;
2. Amended Notice of Motion dated December 6, 2016 on behalf of Time Warner Cable, Inc.;
3. Affirmation of Christopher J. Martin, Esq., dated December 2, 2016 together with Exhibits "A" through "D" on behalf of Time Warner Cable, Inc.;
4. Memorandum of Law of Christopher J. Martin, Esq. dated December 2, 2016 on behalf of Time Warner Cable, Inc.;
5. Notice of Cross Motion dated January 23, 2017 on behalf of Niagara Mohawk Power Corporation d/b/a National Grid;
6. Affidavit of William C. Foster, Esq., sworn to January 23, 2017 together with Exhibits "A" and "B" on behalf of Niagara Mohawk Power Corporation d/b/a National Grid;
7. Affirmation of Peter J. Creedon, Esq., dated January 25, 2017 on behalf of NGM Insurance;
8. Affidavit of Matthew D. Freiman sworn to January 25, 2017 on behalf of NGM Insurance together with Exhibits "1" through "8";
9. Affidavit of Matthew D. Freiman sworn to January 30, 2017 on behalf of NGM Insurance;
10. Affirmation of David C. Klingebiel, Esq., dated January 26, 2017;
11. Affidavit of David Safer sworn to January 26, 2017 together with Exhibits "A" and "B";
12. Amended Notice of Cross Motion dated January 26, 2017 on behalf of Niagara Mohawk Power Corporation d/b/a National Grid;
13. Reply Affirmation of Christopher J. Martin, Esq., dated February 1, 2017 to plaintiffs in Action No. 1 on behalf of Time Warner Cable, Inc.;
14. Reply Memorandum of Law of Christopher J. Martin, Esq. dated February 1, 2017 on behalf of Time Warner Cable, Inc.;
15. Reply Affirmation of Christopher J. Martin, Esq., dated February 1, 2017 to Niagara Mohawk Power Corporation d/b/a National Grid on behalf of Time Warner Cable, Inc.;
16. Reply Memorandum of Law of Christopher J. Martin, Esq. dated February 1, 2017 on behalf of Time Warner Cable, Inc. to Niagara Mohawk Power Corporation d/b/a National Grid;
Papers reviewed in Action No. 2:
1. Notice of Motion dated January 27, 2017 on behalf of Time Warner Cable, Inc.;
2. Affirmation of Christopher J. Martin, Esq., dated January 27, 2017 together with Exhibits "A" through "D" on behalf of Time Warner Cable, Inc.;
3. Memorandum of Law of Christopher J. Martin, Esq. dated January 27, 2017 on behalf of Time Warner Cable, Inc.;
4. Affirmation in Opposition of Peter J. Creedon, Esq., dated February 13, 2017 on behalf of NGM Insurance;
5. Affidavit of Matthew D. Freiman sworn to February 13, 2017 on behalf of NGM Insurance together with Exhibits "1" through "12";
6. Memorandum of Law of Peter J. Creedon, Esq. dated February 13, 2017 on behalf of NGM Insurance;
7. Reply Affirmation of Christopher J. Martin, Esq., dated February 17, 2017 together with Exhibits "A" and "B" on behalf of Time Warner Cable, Inc.;
8. Reply Memorandum of Law of Christopher J. Martin, Esq. dated February 17, 2017 on behalf of Time Warner Cable, Inc.;
9. Affirmation in Opposition of Peter J. Creedon, Esq., dated February 21, 2017 on behalf of NGM Insurance;
10. Affidavit of Matthew D. Freiman sworn to February 21, 2017 on behalf of NGM Insurance together with Exhibits "1" through "12.