Opinion
Index 501078/2017
03-19-2019
PROGRESSIVE DIRECT INSURANCE COMPANY, As subrogee of LOUIS NARDELLA, Plaintiff, v. POWERLINE CYCLES, INC., Defendant.
John Peter Reitano, Esq. Attorney for Plaintiff/Subrogee William D. Spain, Jr. Attorney for Defendant
Unpublished Opinion
John Peter Reitano, Esq. Attorney for Plaintiff/Subrogee
William D. Spain, Jr. Attorney for Defendant
DECISION AND ORDER
THOMAS P. ZUGIBE JUDGE
The Following Papers were read in deciding the motions before the Court:
Papers
Numbered
Defendant's Motion, Affidavit in Support, Related Exhibits A-D and E-Filed Documents 1-3, 8-24
1
Plaintiffs Affidavit in Opposition and Related Exhibit 1 -2
2
Defendant's motion to dismiss or for sanctions is denied in its entirety. Defendant had just released the motorcycle to the subrogor in this matter when the accident occurred. According to the police report, the rear wheel was covered in oil. The subrogor allowed defendant to take the motorcycle back to its shop, but then revoked consent. According to defendant, the subrogor told defendant's principal, in effect, "do not touch the bike, we will pick it up." No evidence in the record suggests that defendant ever informed plaintiff or subrogor that it wished the mototcycle to be preserved. The bike was disposed of several months later.
The law on spoliation is not particularly complex. "[T]he Supreme Court is empowered with broad discretion in determining the appropriate sanction for spoliation of evidence. [Appellate courts] should substitute [their] judgment for that of the Supreme Court only if its discretion was exercised improvidently." Sarris v. Fairway Group Plainview, LLC, 2019 N.Y. Slip Op. 00922, 2 (2d Dep't February 6, 2019); Morales v. City of New York, 130 A.D.3d 792, 794 (2d Dep't 2015).
A party seeking C.P.L.R. §3126 sanctions for spoliation of evidence must show: 1) the party having control over the evidence possessed an obligation to preserve it at the time of its destruction; 2) the evidence was destroyed with a culpable state of mind; 3) the trier of fact could find the evidence one party destroyed was relevant to and would support the opposing party's claim or defense; and 4) the resulting prejudice must be "severe." Sarris, 2019 N.Y. Slip Op. 00922 at 2; Kirschen v. Marino, 16 A.D.3d 555, 556 (2d Dep't 2005). Under the second prong, where physical evidence is involved, the culpable mental state may be mere inadvertence or negligence. See Popfinger v. Terminix Int'l Co. Ltd. Pshp., 251 A.D.2d 564, 565 (2d Dep't 1998). Further, for all evidence, "where evidence has been intentionally or willfully destroyed, its relevance is presumed. However, where evidence has been destroyed negligently, the party seeking spoliation sanctions must establish that the destroyed evidence was relevant to the party's claim or defense." McDonnell v. Sandaro Realty, Inc., 165 A.D.3d 1090, 1095 (2d Dep't 2018) (citations omitted). Crucially, the evidence must be destroyed "before the adversary had an opportunity to inspect them." Kirschen, 16 A.D.3d at 556 (2d Dep't 2005); see Richter v. BMW of N. Am., LLC, 166 A.D.3d 1029, 1030 (2d Dep't 2018). In other words, the party seeking spoliation sanctions must demonstrate prejudice. Id.
Further, a court should sanction the offending party in direct proportion to the damage to the moving party. Thus, "If the moving party is still able to establish or defend a case, then a sanction less severe than striking the pleadings of the offending party is appropriate". McDonnell, 165 A.D.3d at 1095.
Here, the Court, exercising its "broad discretion" in this peculiar circumstance, declines to sanction plaintiff. Even assuming, arguendo, that plaintiff or subrogor was obligated to preserve the motorcycle, four grounds warrant the Court's denial here. First, defendant never even alleged that plaintiff or subrogor intentionally or nefariously disposed of the motorcycle.
Second, defendant, through its principal, was present at the accident scene and possessed the motorcycle for at least some time before subrogor's family members retrieved it. Defendant possessed the opportunity to photograph and physically inspect the motorcycle either at the scene or in its shop before subrogor's instructions not to "touch" it. The Court notes that the Second Department has denied a spoliation claim where the party had access to photographs. Kirchen, above; Gutierrez v. Reiser, 159 A.D.3d 592, 593 (1st Dep't 2018) (noting, inter alia, that photos helped prove defenses). Third, plaintiffs actions in directing defendant not to "touch" the motorcycle and removed it the same day placed defendant on notice that he might be involved in future litigation, triggering at least the obligation to prevent spoliation while it possessed the motorcycle. Fourth, defendant has not shown that any other inspections were conducted that might assist it in formulating its defenses. C.f Gutierrez, 159 A.D.3d at 592-93 (examinations by other auto body shops foreclosed spoliation claim after minivan destroyed). In sum, defendant "had ample opportunity to inspect and photograph the subject [motorcycle] on the day of the accident [and] never made a request in the several months after the accident to conduct a further inspection." Fajardo v. Mainco El. & Elec. Corp., 143 A.D.3d 759, 762 (2d Dep't 2016). Finally, defendant has not specifically identified or detailed what, if any evidence it sought to gain from an inspection. Id.
Given the unique circumstances here, and exercising its "broad discretion," the Court denies defendant's motion seeking spoliation.
The parties are directed to appear for a Preliminary Conference on April 2, 2019. The parties may avoid an appearance by submitting a proposed Preliminary Conference Order for the Court's signature by March 29, 2019. The parties are encouraged to keep the dates in the proposed order within a reasonable timeframe to avoid alteration by the Court.
The foregoing constitutes the Decision and Order of the Court.