Opinion
6072/06.
October 6, 2008.
John H. Mulvehill, Esq. Attorney for Plaintiffs, James, NY.
Mazzara Small, P.C. Attorneys for Defendants Scott and Hauppauge, NY.
Hammill, O'Brien, Croutier, et al. Attorneys for Defendant Al Marra, Jr., Inc. Syosset, NY.
The following papers read on this motion:
Notice of Motion ............................................... 1 Answering Papers ............................................... 2 Reply .......................................................... 3 Sur Reply ...................................................... 4Defendants Nicholas Scott and Scott Tree Company, Inc. ("Scott") move seeking an order pursuant to CPLR 3042, 3043 and 3126 (1) dismissing the action for spoliation of evidence or, in the alternative, a negative inference charge at trial under PJI 1:77.1 for spoliation of evidence, and (2) striking the plaintiff's supplemental bill of particulars as untimely, or, in the alternative, pursuant to N.Y.C.R.R. § 202.21(e), an order vacating the note of issue and certificate of readiness for trial and granting Scott additional discovery.
This action was brought by plaintiffs to recover damages for personal injuries sustained in an automobile accident on February 1, 2005 on Sunrise Highway about 500 feet southeast of the intersection of Sunrise Highway and Block Boulevard. Plaintiff Robin Archer was driving a 1997 Saturn owned by plaintiff Andrea Archer.
Defendants argue that the 1997 Saturn automobile is a critical piece of evidence in this case. They contend that inspecting the vehicle would have aided their defense "with regard to such critical issues as the plaintiff's rate of speed, evidence of whether the plaintiff had applied his brakes and evidence as to whether the plaintiff was wearing his seatbelt." (Mazzara Aff. ¶ 29).
Plaintiff acknowledged disposing of the vehicle the day after the subject accident of February 1, 2005. Plaintiff went to the place the vehicle was towed intending to take pictures. Defendant's point to this and her statement, "you never know what the future would deal and I didn't know how he would handle the case and just for the — to protect myself and my husband, I took pictures," as evidence of her awareness of future litigation (P1. Ex. H p. 17). Plaintiff further acknowledged that the reason she took the photographs was because she was aware there might be a lawsuit in the future. (Id. p. 18).
Defendants contend that Andrea Archer's deposition testimony establishes that she disposed of the vehicle while knowing litigation was likely to follow. Further, she failed to take steps to preserve the vehicle from destruction so it could be presented to defendants for inspection. Therefore, defendants filed this motion seeking to dismiss the action. In the alternative, defendants request a "negative inference charge" against plaintiff under PJI 1:77.1.
Plaintiffs initially oppose the motion to dismiss on the grounds that it should be treated as a summary judgment motion and is therefore untimely pursuant to CPLR 3212, which mandates a summary judgment motion must be filed within "120 days after the filing of the note of issue except with leave of the court with good cause shown." Plaintiffs misinterpret defendants' motion. Defendants moved for a motion to dismiss the action for spoliation of evidence pursuant to CPLR 3126. Such a motion to dismiss is not subject to time restrictions. Plaintiffs request to deny the motion due to untimeliness is denied.
Plaintiffs argue there was no spoliation on the part of Andrea Archer because there is no proof that she had notice the vehicle might be needed for future litigation. She was only aware that there might be a lawsuit, and she thought taking photographs of the vehicle was an adequate attempt at good-faith preservation. Plaintiffs further allege that the vehicle could not have been preserved by Andrea Archer.
The Supreme Court has broad discretion when determining spoliation sanctions. Spoliation sanctions such as dismissal of the claim or barring the destroyer of the product from producing evidence as to the destroyed product do not require willful or bad faith destruction. ( Squitieri v. City of New York, 248 A.D.2d 201, 203.) However, the spoliator must have been aware that the evidence might be needed for future litigation. (DiDomenico v. CS Aeromatik Supplies, 252 A.D.2d 41, 53.)
"Where the lost item was the 'key' evidence in the case, the proper sanction is to strike the pleading of the responsible party" (see DiDomenico v. C S Aeromatik Supplies, 252 A.D.2d 41, 53; Squitieri v. City of New York, 248 A.D.2d 201, 202.), but, "where the loss does not deprive the non-responsible party of the means of establishing his . . . defense," a lesser sanction may be imposed by the judge. (Marro v. St. Vincent's Hospital, 294 A.D.2d 341, 341-342.)
Defendants Scott correctly assert that no proof exists showing Andrea Archer was aware that the evidence might be needed for future litigation. The day after the accident no litigation had been commenced; she was not put on notice of the vehicle's evidentiary value by an expert; and she was not ordered to preserve the vehicle. Her deposition testimony does not indicate that Andrea Archer was aware in any way that litigation would ensue or that the vehicle might be needed. She testified to having an awareness that there might be a lawsuit and stated that she "didn't know how he would handle the case" (P1. Ex. H pp. 17-18).
Defendants Scott are not incapable of proving their defense. Andrea Archer made a good-faith effort to document the damage with four or five pictures. There is an eyewitness who can testify as to his recollection of the events, and there are ample medical reports to indicate the extent and severity of the injuries. Therefore, defendants Scotts' motion to dismiss the action for spoliation of evidence is denied.
In the alternative, defendants request that the court direct that at the time of trial defendants Scott are entitled to a negative inference charge under PJI 1:77.1 against plaintiffs for allowing the destruction of evidence. Plaintiffs contend that it is the province of the justice presiding at the time of trial to issue such a direction. Plaintiffs are correct. Defendants request for a negative inference charge is denied without prejudice to make such application to the presiding justice at the time of trial for such jury instruction.
Defendants Scott allege that plaintiffs' Supplemental Bill of Particulars sets forth injuries not set forth in either their original Bill of Particulars or their Amended Bill of Particulars. Plaintiffs refute this allegation. They claim the injuries therein are continuing disabilities stemming from the initial injuries. A thorough review of the record indicates that the six "new injuries" and claim that "Robin Archer is completely disabled due to the injury" were not specifically mentioned in prior bills of particulars. Plaintiffs, however, provide the office note and report of the surgeon and treating physician, Baruch Toledano, M.D., and indicate that Dr. Toledano will testify that the injuries are not new but rather continuing disabilities relating to the original injuries.
In Bossert v. Jay Dee Transp., Inc., 114 AD2d 833 [2d Dept. 1985], plaintiff, in an action for injuries stemming from an automobile accident, proposed a supplement bill updating claims of injuries on the basis of further medical tests due to the injured plaintiff's continued complaints. The report of the physician related the continued injuries to the initial accident. The Second Department upheld the ruling permitting plaintiffs to serve a Supplemental Bill of Particulars. Defendants Scott's motion to strike the Supplemental Bill of Particulars as claiming new injuries is, therefore, denied.
In the alternative, Defendants Scott request that the note of issue and certificate of readiness be vacated, pursuant to Uniform Court Rules Section 202.21(e), to allow further discovery. Under this section, "the court may vacate a note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect." The motion to vacate the note of issue must be made within 20 days after service thereof, except for good cause shown. Here, the note of issue was filed on January 14, 2008, and the motion was filed on July 13, 2008. Defendants Scott allege, however, that they did not receive the Supplemental Bill of Particulars until July 7, 2008.
As set forth above, the Supplemental Bill of Particulars does not claim new injuries. It claims continuing injuries stemming from the initial accident. Plaintiff Robin Archer testified to these injuries in his examination before trial on December 13, 2007. The Note of Issue was filed on January 14, 2008. Defendants were aware of these injuries by December 13, 2007. The parties agreed on that date that defendants would set up IME's. They did not. Because plaintiffs are not claiming new injuries and defendants knew of the injuries prior to filing the Note of Issue, defendants Scott's request for further deposition or IME's is denied.
This decision constitutes the order of the court.