Opinion
No. TS300538/10.
11-06-2014
David ABILDGAARD, Plaintiff, v. Craig VAN DEN BRULLE and Capitol Furnishings, Inc., Defendants.
Jonathan Wallace, Astoria, for Plaintiff. Kathy M. Lynch, Kathy M. Lynch & Associates, PLLC, New York, for Defendants.
Jonathan Wallace, Astoria, for Plaintiff.
Kathy M. Lynch, Kathy M. Lynch & Associates, PLLC, New York, for Defendants.
Opinion
JAMES E. D'AUGUSTE, J.
This is an action for breach of contract arising from Defendants Craig Van Den Brulle and Capitol Furnishings, Inc. (hereinafter collectively “Van Den Brulle”) alleged nonpayment of a debt owed to Plaintiff David Abildgaard (“Abildgaard”). Van Den Brulle moves 1) pursuant to CPLR 3126 to strike Abildgaard's complaint, or in the alternative, 2) pursuant to CPLR 3124 for an order directing Abildgaard to provide his original handwritten acknowledgment of debt (the “document” or “acknowledgment”) or for an order precluding Abildgaard from introducing the document at trial. For the reasons stated herein, Van Den Brulle's motion is granted to the extent that it seeks preclusion of the document.
Factual and Procedural History
Abildgaard, a wholesale importer of used European designer lighting fixtures, commenced this action on January 29, 2010 in Supreme Court, New York County to recover damages for breach of contract related to his alleged sale of goods to Van Den Brulle, a New York retailer. In his complaint, Abildgaard alleges that Van Den Brulle purchased a substantial quantity of lighting fixtures from him that were delivered in several shipments. Abildgaard claims that Van Den Brulle stopped making payments for merchandise that was already delivered, leaving a balance due on his account. Abildgaard further alleges that on July 3, 2008, he met with Van Den Brulle in order to collect payment on the outstanding debt and, during that meeting, Van Den Brulle signed a handwritten document acknowledging that he owed $62,464.00 to Abildgaard. Abildgaard Aff. ¶ 5, Exh. B. On October 5, 2010, this case was transferred to Civil Court pursuant to CPLR 325(d).
Although this Exhibit is referred to as Exhibit B throughout Plaintiff's Opposition to Motion to Preclude, the Exhibit is marked as Exhibit 2.
Van Den Brulle sharply denies ever signing any document acknowledging a debt owed to Abildgaard. In his responsive pleadings, Van Den Brulle denies the legitimacy of the document since he learned of its existence in 2009 and has asserted that it is an utter fabrication, claiming that his signature was forged or arranged on the document using Photoshop. Van Den Brulle Reply Aff. ¶ ¶ 3, 5. Van Den Brulle made multiple requests for an inspection of the original document, and on December 4, 2013, Van Den Brulle served Abildgaard with a discovery demand to inspect the original document. Van Den Brulle Aff. Exhs. F, G. Van Den Brulle alleges that Abildgaard has never responded to this discovery demand. Id. ¶ 5.
On or about March 6, 2014, Van Den Brulle moved to strike this action from the trial calendar. Id. ¶ 6. On March 5, 2014, the parties, attempting to resolve a post-deposition discovery dispute, executed a two-attorney stipulation providing, in relevant part, that Abildgaard would produce the original acknowledgment for Van Den Brulle's inspection by April 7, 2014. Id. Exh. H. In response, Abildgaard produced only a photocopy of the document. Van Den Brulle Reply Aff. ¶ 7. Van Den Brulle filed the instant motion on May 29, 2014, after Abildgaard's failure to provide the original acknowledgment.
In opposition to this motion, Abildgaard submits the affirmation of Reza Sarbakhsh, his prior counsel. Mr. Sarbakhsh affirms that he had the original document in his possession and personally made the photocopies produced for discovery. Sarbakhsh Aff. ¶ 2; see Abildgaard Aff. ¶ 6. Mr. Sarbakhsh then transferred the case, including the file, to Jonathan Wallace, Abildgaard's current counsel. Sarbakhsh Aff. ¶ 3. Subsequent to the file's transfer, Mr. Wallace could not produce the original document and affirmed “I have never seen the original of Exhibit B but the client, David Abildgaard, and my predecessor attorney, Mr. Sarbakhsh, both assure me it is identical to the original.” Wallace Aff. ¶ 3. Furthermore, Abildgaard attests that the inability to produce the original document is not his fault. Abildgaard Aff. ¶ 8. Based on Abildgaard's own self-serving affidavit and Mr. Sarbakhsh's affirmation, Abildgaard asserts that the photocopy should be admissible in lieu of the allegedly missing original document under an exception to the best evidence rule that allows a photocopy to be admitted as secondary evidence of the contents of the original document.
Van Den Brulle argues that the photocopy of the document should be precluded because his assertion that the document is a fabrication cannot be established without inspecting the original document. Van Den Brulle contends that admitting the photocopy would violate the best evidence rule, especially because this document “is crucial and necessary to the preparation of an adequate defense in this action.” Van Den Brulle Aff. ¶ 5. This Court finds Abildgaard's argument to be unavailing. Additionally, this Court finds that Abildgaard's failure to protect and produce the original document amounts to spoliation of evidence and therefore precludes submission of the photocopy.
Discussion
The best evidence rule “requires the production of an original writing where its contents are in dispute and sought to be proven.” Schozer v. William Penn Life Ins. Co. of NY, 84 N.Y.2d 639, 643 (1994). Under an exception to the best evidence rule, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith.” Id. at 644 (internal citations omitted); 134 W. 119th St., Inc. v. Hart, 22 Misc.3d 1123(A) (Sup.Ct., N.Y. County 2009). While loss of an original document can be established by “a showing of a diligent search in the location where the document was last known to have been kept and through the testimony of the person who last had custody of the original,” the court also said “the more important the document to the ultimate issue in the case, the stricter becomes the requirement of the evidentiary foundation [establishing loss] for the admission of secondary evidence.' “ Schozer, 84 N.Y.2d at 644 (alteration in original) (quoting Harmon v. Matthews, 27 N.Y.S.2d 656, 662 [Sup.Ct., Bronx County 1941] ). “In other words, the court should give careful consideration to the possible motivation for the nonproduction of the original in determining whether the foundational proof of loss was sufficient.” Id. Furthermore, the proponent of any secondary evidence must meet “the heavy burden of establishing, preliminarily to the court's satisfaction, that it is a reliable and accurate portrayal of the original.” Id. at 645.
Here, Abildgaard has not met the heavy burden required to qualify for an exception to the best evidence rule in order to admit the photocopy of the document as secondary evidence. From the early stages of this case, the authenticity of the acknowledgment was challenged. This Court is unable to determine whether the photocopy of the acknowledgment is “a reliable and accurate portrayal of the original” because the original document cannot be produced. See Schozer, 84 N.Y.2d at 645. The Court notes that Abildgaard's arguments are finely tuned to avoid accepting any responsibility for the suspicious inability to produce the original document and Abildgaard provides insufficient reasons as to why the original was lost after this action was commenced. Mr. Wallace specifically affirms that he has “never seen the original” (Wallace Aff. ¶ 3) without offering any explanation as to what happened to the original document. Instead, Mr. Wallace maintains that “[i]t is not Mr. Abildgaard's fault that the original cannot be produced, as the affidavit and affirmation make absolutely clear.” Id. ¶ 5. However, this Court finds that Abildgaard's carefully drafted opposition papers fail to provide any reasonable explanation as to why the original document cannot be produced; thus the photocopy does not qualify for the exception to the best evidence rule and is precluded. B.N. Realty Assocs. v. Lichtenstein, 96 AD3d 434, 434 (1st Dep't 2012) (“[P]laintiff did not qualify for the exception to the best evidence rule that applies to lost or destroyed documents, given plaintiff's failure to provide any excuse for nonproduction of the [document] at issue.”).
Although Abildgaard argues that the authenticity of the photocopied document is validated by the affirmation of his prior counsel (see Sarbakhsh Aff. ¶ 2), his reliance on Kaliontzakis v. Papadakos, 69 AD3d 803 (2d Dep't 2010), for this proposition is mistaken. The Court in Kaliontzakis relied on the statutory exception to the best evidence rule in CPLR 4539(a), which applies only to records produced and copied during the regular course of business. Contrary to Abildgaard's contention, Kaliontzakis does not hold that a document challenged as being a forgery is permitted to be used at trial when, after being informed of this allegation during the course of the litigation, the party seeking to use the allegedly forged document is now incapable of producing it. The exception to the best evidence rule created by CPLR 4539(a) does not apply to the document allegedly photocopied by Mr. Sarbakhsh for the litigation in question. Toho Bussan Kaisha, Ltd. v. Am. Pres. Lines, Ltd., 265 F.2d 418, 423 (2d Cir.1959) (applying New York law) (“The provisions of those acts permitting use of photostats refer only to situations where photostats, microfilms, or the like, have been made in the ordinary course of business and not in preparation for trial.”). Accordingly, Abildgaard has not met the burden required by any exception to the best evidence rule for admitting the photocopied document as secondary evidence.
This Court further determines that Abildgaard's failure to provide the original document and his failure to explain the unavailability of the document constitutes spoliation of evidence. Spoliation of evidence occurs “[w]hen a party alters, loses or destroys key evidence before it can be examined by the other party's expert.” Squitieri v. City of New York, 248 A.D.2d 201, 202 (1st Dep't 1998). “It is well established that a spoliator of key physical evidence is properly punished by the striking of its pleading even if the destruction occurred through negligence rather than wilfulness [sic] ... provided [the party] was on notice that the evidence might be needed for future litigation.” ' Arnez v. Duane Reade, Inc., 12 Misc.3d 1195(A), at *1–2 (Sup.Ct., Richmond County 2006) (quoting MetLife Auto & Home v. Joe Basil Chevrolet, Inc., 1 NY3d 478, 483 [2004] ); see also Squitieri, 248 A.D.2d at 202 (“[T]he court should dismiss the pleadings of the party responsible for the spoliation.”). Alternatively, the court may, “at the very least, preclude that party from offering evidence as to the destroyed product” or document. Squitieri, 248 A.D.2d at 202. However, even in cases where evidence was not destroyed willfully or in bad faith, the above mentioned spoliation sanctions can still be invoked where “a party's negligent loss of evidence can be ... fatal to the other party's ability to present a defense.” Id. at 203.
From the time Van Den Brulle, in his responsive pleadings, challenged the document's authenticity, alleging that the document was both a forgery and fraudulently created, Abildgaard was on notice that he had a duty to preserve the original document as evidence. Further, the document's evidentiary value is essential to Van Den Brulle's ability to prevail in this action and present his defense, hence the document cannot be substituted by a photocopy. See Squitieri, 248 A.D.2d at 202. Additionally, Abildgaard failed to comply with discovery demands for the original document and failed to honor the discovery stipulation dated March 5, 2014 (Van Den Brulle Aff. Exh. H), which provided that Abildgaard would produce the original document by April 7, 2014. Based upon Abildgaard's supporting affidavit and affirmations, which show that his current counsel should have possession of the document, Abildgaard's failure to produce the original document constitutes spoliation of evidence. Wallace Aff. ¶ 3; Abildgaard Aff. ¶¶ 6–7; Sarbakhsh Aff. ¶¶ 2–3.
Since striking a party's pleading is a drastic remedy, see Almas v. Loza, No. 112379/07, 2011 WL 5118136 (Sup.Ct., N.Y. County Oct. 20, 2011), this Court instead sanctions Abildgaard by precluding the admission of the photocopied document into evidence. Because this Court is not striking Abildgaard's pleadings, it refrains from making any finding as to whether the original document was lost in bad faith. However, Abildgaard's failure to produce the original document would constitute spoliation of evidence regardless of whether the original document was lost negligently or in bad faith. Squitieri, 248 A.D.2d at 203 ; Arnez, 12 Misc.3d 1195(A), at *1–2.
Van Den Brulle further asserts that the authenticity of the acknowledgment is the central issue in this case and thus it would be unduly prejudicial to allow the photocopy of the document in evidence. See Schozer, 84 N.Y.2d at 644, 646 (“[T]hose same dangers [of fraud and prejudice] exist any time an original document is lost.”). Despite Abildgaard's argument that there is no prejudice to Van Den Brulle (Wallace Aff. ¶ 5), he reinforces Van Den Brulle's argument that the document is central to this case by stating that “the Court would be prejudging the case if it determines the document should not come in.” Id. Admitting the document in evidence would be especially prejudicial when Abildgaard has failed to prove that the original document was actually signed by Van Den Brulle. See Seplow v. De Camillis, 115 A.D.2d 393, 394 (1st Dep't 1985) (“Essential to appellant's defense of forgery was expert evidence concerning the microscopic examination of the original documents to determine the presence of any aberrations in the questioned handwritings.... Such evidence cannot be obtained through examinations of photostatic copies.”). Accordingly, the photocopy of the document is precluded.
Conclusion
For the reasons stated above, it is hereby ordered that Van Den Brulle's motion is granted to the extent that the photocopy of the document is precluded. This constitutes the decision and order of this Court.