McRae v Lackmann Culinary Servs., Inc.

[*1] McRae v Lackmann Culinary Servs., Inc. 2006 NY Slip Op 52168(U) [13 Misc 3d 1238(A)] Decided on October 30, 2006 Supreme Court, Nassau County Feinman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 30, 2006
Supreme Court, Nassau County

Wanda McRae, Plaintiff,

against

Lackmann Culinary Services, Inc., Lackmann Food Service, Inc. and "John Doe", Said Name Being Fictitious And Intended to Represent an Unknown Employee of, Defendant(s), Defendants.



7384/05

Thomas Feinman, J.

The plaintiff, Wanda McRae, moves for an order, pursuant to CPLR §3126, striking the defendants' Answer, or in the alternative, to strike the First, Third and Fourth Affirmative Defenses, and grant the plaintiff Summary Judgment on liability pursuant to CPLR §3212. The defendants, Lackmann Culinary Services, Inc., Lackmann Food Service Inc. and "John Doe", said name being fictitious and intended to represent an unknown employee of defendant", (hereinafter referred to as "Lackmann"), submit opposition. The plaintiff submits a reply affirmation.

Plaintiff claims that on April 2, 2005, she was a pedestrian crossing the intersection at or near Bedell Street and Margaret Court, Village of Hempstead, County of Nassau, State of New York, when she was struck by a white van. The plaintiff avers that the driver of the white van stopped, got out of the van, helped the plaintiff, and told the plaintiff that his name was Anthony Collins. Plaintiff wrote down the license plate number of the white van. Plaintiff provides that the police responded to the scene, but then had to leave the scene and respond to another call. When the police failed to return, plaintiff went to the nearest police station and provided the plate number to the police, which was transcribed to the police report. Plaintiff claims that she has sustained severe personal injuries as a result of the incident. [*2]

Daniel Kapps, employee of Lackmann, Director of Food Services, testified that on or about April 2, 2005, as the Director of Food Services, he oversaw all food and beverage operations at the Adelphi University campus. Mr. Kapps testified that the van allegedly involved in the subject accident was a van that was in fact used by the defendant, Lackmann, for the Adelphi campus food service. Mr. Kapps stated that two sets of keys for the subject van existed which were kept in his office in a drawer and were signed out in a "log book". Mr. Kapps testified that the person/driver who signs out the keys would transcribe the date, his/her name, the time in and time out into the log book, and the reason why the keys would be taken. The log book was a "regular...spiral...notebook".

Mr. Kapps testified that when he first learned about the accident, sometime after the accident occurred, he checked the log book. Mr. Kapps could not recall what the entries were at that time. Thereafter, the log book was discarded or otherwise disposed of and went "missing". Mr. Kapps' testimony reveals that the log book existed up to the time of the accident, immediately after the accident, that Mr. Kapps checked the log book after being informed that the plaintiff was allegedly involved in an accident with the defendants, that no one other than Mr. Kapps checked the log book, and thereafter, the log book was "missing".

The defendants assert that the subject van was not involved in the plaintiff's accident, and that no records exist indicating that the subject van was in use at the time of plaintiff's accident.

Following the deposition of Mr. Kapps, the plaintiff served the defendants with a Notice for Discovery and Inspection requesting copies of all documents which were used to record the person(s) who has possession of keys to the subject van, the items disposed of, the date of disposal, the person(s) who disposed the item(s), and the reasons as to why such items were disposed. The defendants have failed to comply with said demand.

After being served with the instant motion, the defendants provided an untimely, unresponsive and insufficient response to Plaintiff's aforesaid Notice for Discovery and Inspection. The defendants' counsel provides that the exact date of disposal of the log book is unknown, that the book was filled to capacity, and therefore, a new book was needed, sometime after the accident.

Where crucial evidence has been negligently destroyed, spoliation sanctions are appropriate. (Kirkland v. New York City Housing Authority, 236 AD2d 170). One party's negligent loss of evidence can be just as fatal to another party's liability to present a defense as the willful destruction of evidence. (Squitieri v. City of New York, 248 AD2d 201). Where a party intentionally or negligently destroys essential physical evidence "such that its opponents are prejudicially bereft of appropriate means to confront a claim with incisive evidence,' the spoliator may be sanctioned by the striking of its pleading." (New York Cent. Mut. Fire. Ins. Co. v. Turnerson's Elec., 280 AD2d 652, citing, DiDomenico v. C&S Aeromatik Supplies, Inc., 252 AD2d at 53).

When a party negligently loses, or intentionally destroys key evidence, thereby depriving [*3]the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading, (Baglio v. St. John's Queens Hospital, 303 AD2d 341). In determining the appropriate sanction, the essential issue is the resulting prejudice to the adversary. (Conderman v. Rochester Gas & Electric, 236 AD2d 170).

The assertion that evidence was never requested prior to its destruction, while compelling, is nevertheless, not always excusable. The fact that evidence is destroyed prior to the commencement of an action, and hence prior to being requested by an adverse party, is not a cognizable excuse to a spoliation claim when the spoilier of evidence had notice that the evidence may be needed for future litigation. (Di Domenico v. C & S Aeromatic Supplies, Inc., 252 AD2d 41).

Here, the defendants, upon notice of plaintiff's accident, referred to the log book, checked the entries, and then either intentionally, or negligently, discarded the log book as it is now "missing". The log book entry would have confirmed whether the subject van was, or was not, operated by an employee of the defendant, Lackmann, at the time of the incident. Additionally, the sign in and sign out names of the individuals who utilized the van would have demonstrated defendants' permission and consent of use of its vehicle on the date of the accident.

Here, the loss of evidence, to wit, the loss of the log book, coupled with the defendants' untimely and unresponsive response to plaintiff's discovery demand regarding the log book, has the effect of depriving the plaintiff's means of establishing its case as the defendants claim the defendants' van was not involved in this accident. While it is arguable whether the loss of the log book may not have deprived the plaintiff of all means of establishing its case, the defendants' destruction, or loss of the log book has clearly prejudiced the plaintiff as the log book is central to identifying the driver of the subject van and confirming whether or not the subject van was "in use" or "parked" at the time of the accident. Upon notice of possible future litigation, the defendant not only checked the log book, but somehow allowed the log book to be discarded, or go "missing". Here, the spoliator has destroyed evidence, either intentionally or negligently, depriving plaintiff of the means to confront her claim with incisive evidence. Therefore, in an effort to the balance the inequities herein, the sanction of striking the defendants' pleading is warranted, as a matter of elementary fairness.

In light of the foregoing, as the defendants' answer and its affirmative defenses are hereby stricken, the plaintiff's motion for partial summary judgment on the issue of liability is hereby granted.

E N T E R :

________________________________

J.S.C.

Dated: October 30, 2006 [*4]

cc: Bruce Montague & Partners

Morenus, Conway, Goren & Brandman, Esqs.