Heller v Home Depot USA, Inc.

[*1] Heller v Home Depot USA, Inc. 2006 NY Slip Op 50722(U) [11 Misc 3d 1086(A)] Decided on April 26, 2006 Supreme Court, Sullivan County LaBuda, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 26, 2006
Supreme Court, Sullivan County

Marcia Heller and EDWARD H. HELLER, Petitioners,

against

Home Depot USA, Inc., Respondent.



2077-05



Rutberg & Associates, P.C.

3657 Albany Post Road

Poughkeepsie, NY 12601

By: Richard Greenblatt, Esq., of counsel

Attorney for Petitioners

Carter, Conboy, Case, Blackmore,

Maloney & Laird, P.C.

20 Corporate Woods Boulevard

Albany, NY 12211

By: William DeCaire, Esq., of counsel

Attorney for Respondent

Frank LaBuda, J.

This matter comes on by petitioner's Order To Show Cause (OSC) seeking sanctions against respondent for failure to obey this Court's Order dated September 9, 2005 prohibiting the destruction or alteration of video surveillance tape evidence of the injuries sustained by petitioner at respondent's Monticello store on October 23, 2004 and to provide petitioners with a copy thereof.

Respondent submits an affirmation in opposition with affidavit exhibits and a memorandum of law.

Petitioners submit a reply affirmation including case law.

Respondent submits sur-reply.

Petitioner fell over a flat cart and sustained certain injuries at the Monticello Home Depot on October 23, 2004. [*2]

Petitioners contacted an attorney who had conversations with various claims examiners of the company representing Home Depot.

Said conversations occurred prior to and including February 16, 2005. All conversations indicated that a video tape of the incident existed and was burned onto a CD but would not be furnished absent the filing of a summons and complaint.

Petitioner's original attorney referred the matter to their current attorney who obtained a pre-complaint discovery Order from this Court dated September 9, 2005 restraining respondent from destroying or altering the tape and to provide a copy to petitioners.

After numerous discussions involving said tape and after repeatedly failing to receive a copy thereof from respondent, petitioner now moves, pursuant to CPLR 3126, for an Order of this Court; 1. resolving the issue of whether respondent left the instrumentality that caused petitioner's injuries in the path of the petitioner in favor of petitioner and against respondent and 2. monetary sanctions including legal fees and costs and disbursements regarding the instant OSC.

Petitioners allege that respondent was aware soon after the alleged accident on October 23, 2004 and upon this Court's Order dated September 9, 2005 that the video tape of the incident was paramount to resolving liability herein and had to be preserved and a copy sent to petitioners. That the failure to supply petitioners with a copy of the tape or, in fact, losing or destroying it was wilful and against the Order of this Court. That the tape would be dispositive of liability regarding petitioner's injuries. That the proper remedy, pursuant to CPLR 3126, would be to resolve liability in favor of petitioners and against respondent and, for monetary sanctions of legal fees and cost and disbursements for the needless motion practice.

Respondent submits affidavits from four people, including a claims examiner from the company representing respondent, a litigation paralegal, assistant store manager and an employee of respondent, all of which, in essence, admit to the existence of the video tape but that a thorough search has not produced either the tape or the CD into which the tape was burned.

Respondent argues that there is no proof that its employees acted wilfully or deliberately to avoid compliance with this Court's preservation Order and that petitioners have not been prejudiced by the loss of the tape.

The question herein, whether the requested sanction(s) should be granted, hinge on upon the analysis of two factors; the nature of the loss of the video tape and whether the tape is crucial evidence or spoliation. [*3]

A Court may impose a sanction pursuant to CPLR 3126 not just for wilfulness in failing to provide but for negligence in losing such evidence as long as said evidence is crucial to the litigation or proposed litigation. See, Cummings v Central Tractor Farm & Country, Inc., 281 AD2d 792 (3rd Dept., 2001);

Puccia v Farley, 261 AD2d 83 (3rd Dept., 1999); Kirkland v New York City Housing Authority, 236 AD2d 170 (1st Dept., 1997).

This Court finds that the lost tape showing petitioner's accident is crucial evidence which would be dispositive regarding liability herein. The respondent was on notice early on that the tape was crucial and made arrangements to have it preserved and a copy burned into a CD. The respondent was also on notice to preserve said tape by this Court's Order dated September 9, 2005.

This Court, while hesitating to find respondent's conduct wilful, does find that respondent was negligent in losing not only the tape but the CD to which it was burned into.

Based upon the above, it is

ORDERED, that said portion of petitioner's Order To Show Cause seeking an order resolving the issue to which the information is relevant, i.e., liability, is granted and resolved in favor of the petitioners and against the respondent, and it is further

ORDERED, that said portion of petitioner's Order To Show Cause seeking an order for legal fees and costs and disbursements is denied.

This shall constitute the Decision and Order of this Court.

DATED: April 26, 2006

Monticello, NY

_______________________________

Hon. Frank J. LaBuda

Acting Supreme Court Justice