Opinion
No. 2022-50543 Index No. 156167/2017
06-28-2022
Jennifer Agius and ALEXANDER AGIUS, Plaintiffs, v. Gray Line Corporation, A/K/A GRAY LINE WORLDWIDE, GRAY LINE NEW YORK TOURS, INC., COACH USA, INC, CITYSIGHTS LLC, TWIN AMERICA LLC, and GRAY LINE NEW YORK SIGHTSEEING, Defendants.
Woods Lonergan PLLC, New York, NY (Andreas E. Christou of counsel), for plaintiffs. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, NY (John Hsu of counsel), for defendants.
Unpublished Opinion
Woods Lonergan PLLC, New York, NY (Andreas E. Christou of counsel), for plaintiffs.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, NY (John Hsu of counsel), for defendants.
GERALD LEBOVITS, J.
This motion addresses a discovery dispute in a negligence action arising from plaintiff Jennifer Agius's slip-and-fall on the stairs of a two-decker tour bus. Plaintiffs move for spoliation sanctions under CPLR 3126, or, in the alternative, seek under CPLR 3124 to compel defendants to further supplement their response to plaintiff's March 2021 post-EBT demands. Plaintiffs' request for spoliation sanctions is denied without prejudice. Plaintiff's request to compel is granted. Plaintiffs are awarded under CPLR 3126 their reasonable attorney fees incurred in bringing this motion.
BACKGROUND
In March 2021, plaintiffs deposed the driver of the tour bus in which plaintiff Jennifer Agius fell. (See NYSCEF No. 76.) The driver testified at his deposition that he and his supervisor had, or likely would have, prepared several documents or logbook entries on the date of the accident, including reports about the accident itself. (See NYSCEF No. 71 at 1 [plaintiff's memorandum of law, citing deposition passages].) The following week, plaintiff served a set of post-EBT demands, seeking those documents and logbook entries. (See NYSCEF No. 73.)
Defendants' original deadline to respond to plaintiffs' post-EBT demands was May 3, 2021, extended on consent until May 17, 2021. (See NYSCEF Nos. 61, 64 [status-conference orders].) Defendants did not respond until June 8, 2021. (See NYSCEF No. 79.) In response to a request for the forms that the driver of the bus had testified he would have prepared on the date of the accident (regardless whether an accident had occurred), plaintiffs stated that they had already produced a series of reports on similar subjects-none of which had been prepared on the date of the accident itself. (See id. at 1-2.) With respect to plaintiffs' request for "[a]ny and all incident or accident reports prepared" by the driver, defendants stated that they were "not in possession of any written documents describing the incident[] which were prepared in the ordinary course of business." (Id. at 2.) And defendants refused to produce copies of any logbook entries entered by the driver on the date of the accident, or any reports or documents prepared by the driver's supervisor that day, on the ground that demands for these documents were "irrelevant, overbroad, vague, unduly burdensome and contrary to the requirements of the CPLR." (Id.) Two weeks later, on June 22, 2021, plaintiffs served defendants with a good-faith letter, objecting to defendants' June 8 post-EBT responses. (See NYSCEF No. 80.)
At the next regularly scheduled conference, held on June 28, 2021, this court directed defendants to respond to the June 22 good-faith letter by July 30. (See NYSCEF No. 65.) That deadline was then extended twice more on consent over the summer and fall of 2021. (See NYSCEF Nos. 66, 68 [status-conference orders].) Finally, in early November, this court entered a status-conference order directing defendants to serve a responsive letter by November 8, 2021, or face a motion to compel. (See NYSCEF No. 69.)
On November 8, defendants served a responsive letter as directed by the court. (See NYSCEF No. 85.) That letter, though, did little more than reiterate the June 8 responses that plaintiffs had already found unsatisfactory. (Compare NYSCEF No. 79, at 4-6, with NYSCEF No. 85 at 1-2.) And it staked out defendants' bottom-line position: That defendants "have exchanged all pertinent and relevant records prepared in the regular course of ordinary business relating to plaintiff's cause of action as alleged in the bill of particulars and as described by plaintiff in her deposition." (NYSCEF No. 85 at 2.)
Before the next conference (scheduled for December 13, 2021), the parties notified this court by email of their disagreement about defendants' response to plaintiffs' post-EBT demands. (See NYSCEF No. 86 [proposed status conference order]; NYSCEF No. 87 at 15-16 [emails from plaintiffs' counsel to court].) After reviewing the deposition transcript, defendants' June 8 post-EBT responses, and the parties' ensuing letters (provided by the parties on request), the court emailed the parties a series of questions aimed at better understanding their respective positions on plaintiffs' post-EBT demands. (See NYSCEF No. 87 at 12.) Defendants' counsel, after consulting with defendants, provided a series of responses articulating in greater detail defendants' refusal to provide additional documents-arguing, in essence, that the documents and records sought by plaintiffs were not relevant and thus not required to be produced. (See id. at 9-11.)
This court found defendants' position unpersuasive. (See NYSCEF No. 88 [email from court to parties].) The court therefore directed defendants to produce, by January 24, 2022, documents responsive to plaintiffs' request. Alternatively, if "any of the requested documents are not in defendants' possession, custody or control," defendants were to provide by January 24 "a detailed Jackson- type affidavit regarding those documents." (Id.)
The court's specification of a Jackson -type affidavit referred to Jackson v City of New York (185 A.D.2d 768, 770 [1st Dept 1992]).
On January 21, defendants served plaintiffs with a five-paragraph Jackson affidavit from defendants' vice president for operations, James Murphy. (See NYSCEF No. 89.) This affidavit states that before Murphy's own deposition in December 2020, he had "conducted a search for all documents compiled as a result" of the accident, "which included a detailed review of the archived documents maintained in the ordinary course of its business," and that this search did "not located any documents generated by the bus driver... or [his supervisor] in relation to plaintiff's alleged incident on August 10, 2016." (See id. at ¶¶ 2-3.) Murphy went on to state that although defendants' counsel had requested a further search for documents in response to this court's request, Murphy was "unable to perform a second search for the above listed documents" given "the closure of our company as of March 18, 2020 due to the ongoing Covid-19 pandemic." (Id. at ¶¶ 4-5.)
The affidavit's notarization is dated January 22, 2022. (See NYSCEF No. 89 at 3.) The parties do not suggest this minor discrepancy in dates is meaningful; and it appears from context to be a scrivener's error.
Murphy's affidavit did not explain why COVID would render impossible a second search for documents in January 2022. The affidavit did not disclose how Murphy could have conducted the initial search for documents in December 2020, given his assertion that the second search directed by this court was made impossible by the advent of COVID in March 2020. And the affidavit did not address whether defendants' counsel had ever identified this COVID-related obstacle during the increasingly contentious correspondence between counsel over the post-EBT responses.
Plaintiffs now move under CPLR 3126 for spoliation sanctions. In the alternative, plaintiffs move under CPLR 3124 to compel defendants to produce responsive documents or to provide a satisfactory Jackson affidavit. Plaintiffs also seek the attorney fees incurred in bringing the current motion.
Plaintiffs' motion is granted in part and denied in part.
DISCUSSION
1. As an initial matter, defendants assert that this motion should be denied for plaintiffs' failure to attempt first to resolve the underlying discovery dispute. (See NYSCEF No. 95 at 2-3.) This assertion is groundless. Given the circumstances leading up to the service of Murphy's Jackson affidavit-including the parties' correspondence with the court that led to this court's January 2022 discovery directive-plaintiffs had no reason to think that raising concerns over that affidavit would be anything but futile.
2. On the merits, the branch of plaintiff's motion seeking spoliation sanctions is denied. As plaintiffs themselves concede (see NYSCEF No. 71 at 8), a request for sanctions for spoliation of evidence is premised on the wrongful loss or destruction of that evidence. (See Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 N.Y.3d 543, 547 [2015].) Plaintiffs have not shown that the documents and logbook entries they seek have been discarded or destroyed. At most, plaintiffs have established through Murphy's Jackson affidavit that Murphy's initial search for some of the documents-conducted at least three months before plaintiffs' post-EBT demands described specifically the documents at issue-did not find anything. (See NYSCEF No. 89 at ¶¶ 2-3.) That fact, standing alone, does not satisfy the predicate spoliation requirement that the evidence at issue has been lost or destroyed. Indeed, the impetus for this motion is Murphy's conclusory statement that it is not possible to determine whether the demanded documents are, or are not, in defendants' possession, custody, or control, because Murphy is unable to conduct a search for the demanded documents. (See id. at ¶¶ 4-5.) Spoliation sanctions are not warranted in these circumstances. The court's denial of this branch of plaintiffs' motion is without prejudice to renewal upon a proper factual showing.
3. The branch of plaintiff's motion to compel production of the requested documents, or a proper Jackson affidavit, is granted. This court is unpersuaded by defendants' contention that Murphy's affidavit satisfied this court's January 2022 directive. (See NYSCEF No. 95 at 12-13.) That directive required defendants to produce the documents or serve a detailed affidavit explaining their inability to do so. (See NYSCEF No. 88.) Detailed, Murphy's affidavit is not.
The affidavit states that Murphy had searched for, but could not find, "documents generated by the bus driver" or his supervisor "in relation to plaintiff's alleged incident on August 10, 2016." (NYSCEF No. 89 at ¶ 3.) Plaintiffs' post-EBT demands, though, were not limited to documents generated specifically in relation to Jennifer Agius's slip-and-fall; rather, they sought all documents generated by the driver on the date of the accident and also any logbook entries the driver made that day.
Regardless, the affidavit provides no information about, for example, where Murphy looked in his 2020 document search, or for how long. Defendants contend that testimony from Murphy's deposition about defendants' record-keeping practices supplied this missing information. (See NYSCEF No. 95 at 12-13.) But the deposition testimony on which defendants rely stated that Murphy would not look for or gather documents himself, but would instead ask the "person in charge of those records" to do so. (NYSCEF No. 97 at Tr. 21:9-16.) Murphy also acknowledged that he had only an "overall idea" of how defendants keep their records, limited to knowing which records were stored electronically and which maintained in hard copy, and that hard copy records were kept in "[f]ile cabinets." (NYSCEF No. 97 at Tr. 21:17-22:21.) This general testimony is not sufficient to supply the detail missing from Murphy's affidavit. Indeed, it suggests that the required Jackson affidavit might have been better left to defendants' records custodian; or, at least, that an explanation was called for about why defendants relied on Murphy to supply the affidavit.
Murphy also represents, without elaboration, that he could not search for the documents sought in plaintiffs' post-EBT demands, "[g]iven the closure of our company as of March 18, 2020 due to the ongoing Covid-19 pandemic." (Id. at ¶ 5.) This representation is unsatisfactory as well. This paragraph of the affidavit raises questions about how Murphy could have performed his first document search, given that his process of preparing for a December 2020 deposition would likely have occurred after the March 2020 closure of the company. Murphy also does not indicate whether his inability to search for the documents stems from (i) his no longer having the right to access defendants' offices because he is no longer employed by defendants (in which case it is unclear why he was chosen to provide the Jackson affidavit); (ii) his simply lacking keys to those offices or the ability to readily obtain them due to the bus company's closure (in which case one would expect more details about how access to the offices could be obtained, by counsel or otherwise); or (iii) some other reason.
This court holds that defendants must, by August 19, 2022, not only conduct a renewed search for documents responsive to plaintiffs' March 2021 post-EBT demands, but also produce those documents to plaintiffs. If defendants are unable to conduct that search, or if the search does not locate any responsive documents, defendants must provide an affidavit explaining the efforts undertaken to comply with this court's directive and why those efforts were unavailing. Any such affidavit must be supplied by a person with direct personal knowledge of the information contained in the affidavit.
If defendants supply an affidavit to explain the failure of a document search to uncover responsive documents, the affidavit shall identify, with specifics, what locations for documents and files (hardcopy and electronic) were searched, by whom, and for what length of time; and the affidavit shall also describe, in detail, defendants' applicable document-retention policies and whether there is any record of the documents at issue having been destroyed pursuant to those policies. If defendants supply an affidavit to explain their inability to conduct a document search, the affidavit shall detail the affiant's efforts to obtain access to the building (and the offices within that building) in which defendants' documents and files are located. If the obstacle to obtaining access to the relevant documents is the financial condition of defendants, the affidavit shall describe that condition and how it affects document access, with specifics. If the obstacle to obtaining access is a restriction related to COVID-19, the affidavit shall explain the nature of that restriction, how long it has been in place and when the affiant expects it to be relaxed, and why that restriction extends even to preventing a limited number of masked individuals from conducting a search for documents.
4. The branch of plaintiffs' motion under CPLR 3126 seeking an award of the attorney fees and costs incurred by plaintiff in bringing and litigating this motion is granted. Given the manifest inadequacies of the Murphy affidavit, and the lengths to which plaintiffs were required to go to obtain even that affidavit, this court has little difficulty concluding that an award of fees under CPLR 3126 is appropriate.
Defendants raise two contentions in opposition to plaintiffs' request for fees. Defendants suggest that the request is foreclosed by plaintiffs' not having conferred with defendants to object to the deficiencies in the Murphy affidavit. (See NYSCEF No. 95 at 12-13.) But, as discussed above, plaintiffs could reasonably have concluded that any conferral over the affidavit would be futile. Indeed, defendants do not give a reason to think that anything would have changed "had [plaintiffs] first advised defendants, prior to making the instant motion, that [plaintiffs] believed Mr. Murphy's affidavit to be deficient." (Id.) Defendants also assert that "defendants['] conduct has not been 'dilatory'" because defendants provided plaintiffs with the Murphy affidavit "three days before the deadline to do so." (Id. at 12.) That the affidavit was timely served on plaintiffs, though, does not render defendants' overall course of conduct with respect to these documents anything but dilatory and obstructive. Defendants' arguments against a CPLR 3126 award of fees are unpersuasive.
Accordingly, for the foregoing reasons it is
ORDERED that the branch of plaintiffs' motion seeking spoliation sanctions under CPLR 3126 is denied without prejudice; and it is further
ORDERED that the branch of plaintiffs' motion seeking under CPLR 3124 to compel defendants to supplement their responses to plaintiffs' March 2021 post-EBT demands is granted as set forth above; and it is further
ORDERED that the branch of plaintiffs' motion seeking under CPLR 3126 an award of the fees and costs incurred by plaintiff in filing and briefing the current motion is granted, with the amount of plaintiffs' reasonable attorney fees and costs to be determined at the close of the case.