State Farm Mut. Auto. Ins. Co. (Meyer) v AAAA Bestway Tires & Serv., Inc.
Annotate this CaseDecided on December 13, 2006
Civil Court of the City of New York, Kings County
State Farm Mutual Automobile Insurance Company, a/s/o Nancy Meyer, Plaintiff,
against
AAAA Bestway Tires & Service, Inc., Defendant.
41596/05
Alice Fisher Rubin, J.
Plaintiff, State Farm Mutual Automobile Insurance Company, a/s/o Nancy Meyer commenced this action against the defendant, AAAA Bestway Tires & Service, Inc., to recover $13,893.83, which was paid pursuant to the terms of the insurance policy, as a result of damages sustained to the subrogor, Nancy Meyer's vehicle.
Defendant moves for an order pursuant to CPLR 3216, dismissing plaintiff's complaint due to plaintiff's spoliation of a key piece of evidence, or in the alternative, precluding plaintiff from calling its experts, Lange Technical Services, Ltd., as a witness at the time of trial. Plaintiff opposes defendant's motion on the grounds that CPLR 3126 is inapplicable to this case.
After careful review of the moving papers, supporting documents and opposition thereto, the court finds that plaintiff's argument that CPLR 3126 is inapplicable to the case at bar, to be without merit.
As a general proposition, when a party is unable to produce evidence which has been requested through discovery, and/or has not been complied as a result of a court's directive, one can look to CPLR 3126 does in fact set forth penalties for a party's failure to disclose as guidance to sanctions the court can impose. The penalties set forth in the statute are as follows:
— Deciding the disputed issue in favor of the prejudiced party;
— Precluding the disobedient party from producing evidence at trial on the disputed issue;
— Striking the pleadings of the disobedient party, staying the proceedings until the ordered
discovery is produced or rendering a default judgment against the disobedient party. [*2]
Therefore, under the circumstances of this case, the defendant can in fact move for an order pursuant to CPLR 3126, striking the pleadings and/or preclusion of evidence at the trial.
While the striking of pleadings is a harsh remedy to grant, there is an evolving rule that a spoliator of key physical evidence is properly punished by the striking of its pleading. See, DiDomenico v. C&S Aeromatik Supplies, Inc., 252 AD2d 41, 682 NYS2d 452 [2nd Dept., 1998]. Sanctions for spoliation are appropriate where a litigant intentionally or negligently disposes of crucial items of evidence involved in an accident before the adversary has an opportunity to inspect them. Kirkland v. New York City Housing Authority, 236 AD2d 170, 666 NYS2d 609 [1st Dept., 1997]. Although severe, dismissal of an action or striking of a party's pleading, is an appropriate remedy when the evidence spoiled is a "key piece of evidence," whose destruction precludes inspection by an adverse party.
In determining whether to strike a party's pleading, and/or preclude plaintiff from calling its experts, as a witness at the time of trial, the court should ascertain what prejudice if any the party seeking the sanction has incurred by the absence of the spoiled evidence.
In the case at bar, the plaintiff had in its possession the damaged vehicle. While the vehicle was in its possession, State Farm consulted with and retained the services of Lange Technical Services, hereinafter "Lange." Lange inspected the vehicle at plaintiff's request and issued an opinion and/or report as to the cause of the fire, in which it concluded was related to the recent engine replacement. Lange issued two separate reports, one on June 23, 2004, a couple of months after the vehicle caught on fire, and its final report on February 22, 2005. Thereafter, the plaintiff caused the vehicle to be sold for salvage at an auction which took place on July 27, 2004.
Plaintiff commenced this lawsuit on or about April 18, 2005, two months after the final report of February 22, 2005. Plaintiff alleges in its complaint that the sustained property damage was as a result of the negligence of the defendant. Defendant responded with its verified answer and demands for discovery, which include but were not limited to a demand for production of the vehicle and preservation of the vehicle.
Here, the plaintiff argues that the doctrine of spoliation of evidence, per se is inapplicable to negligence cases in New York State, and that the doctrine does not apply to the case at bar, due to the fact that the complaint alleges negligence on the part of the defendant, as opposed to a defective product. Plaintiff further argues that the cases cited by defendant relate to product liability matters and/or cases in which a request for preservation of evidence was ignored and therefore distinguishable.
This court disagrees and finds plaintiff's arguments to be unpersuasive. The doctrine of spoliation of evidence has been applied to negligence cases in New York State. In fact, there is case law relating to negligence cases in the First, Second and Third Departments which have [*3]imposed the sanction of preclusion, as well as striking a party's pleading. In Yi Min Ren v. Professional Steam-Cleaning, 271 AD2d 602, 706 NYS2d 181 [2nd Dept., 2000], the court reversed the lower court's order which denied plaintiff's motion pursuant to CPLR 3126. The evidence in question was a ladder which plaintiff had used to stand and upon which he fell from. The issue was the condition of the ladder which was allegedly stolen from plaintiff's job site.
In Thomas J. Roman v. North Shore Orthopedic Association v. Modern Rad, Ltd., v. Tingle X-Ray Products, 271 AD2d 669, 706 NYS2d 181 [2nd Dept., 2000], the court modified the lower's court order. In that case, the plaintiff sued as a result of injuries he allegedly sustained when an x-ray table collapsed while he was lying on top waiting to be examined. Defendant, North Shore Orthopedic commenced a third-party action against Modern Rad, the entity that sold, installed and serviced the x-ray machine, and Tingle X-ray Products, Inc., the manufacturer of the machine. During discovery, the parties learned that North Shore had sold the machine which was disassembled by its new owner. Prior to the sale of the x-ray table, Modern Rad, the third-party defendant had inspected and repaired the machine after plaintiff's accident. Modern Rad moved and Tingle cross-moved to strike the third-party complaint pursuant to CPLR 3126, based upon spoliation of evidence. The Supreme Court granted the motion and cross-motion. The Appellate Division, Second Department, citing DiDomenico v. C&S Aeromatik Supplies, 252 AD2d 41 [2nd Dept., 1998], modified the order, and held that the Supreme Court improvidently exercised its discretion in granting the motion to Modern Rad insofar as asserted against it, and held that since North Shore sold the machine after the commencement of its third-party action, the sanction of striking the third-party complaint insofar as asserted against Tingle was a provident exercise of discretion, as Tingle was denied an opportunity to examine the machine.
Similarly, in the case at bar, the plaintiff had in its possession the vehicle and sold it for salvage. As a result of plaintiff's negligence and failure to preserve a "key piece of evidence," the defendant in essence has been denied the same opportunity which plaintiff has had to examine the vehicle. The plaintiff has had an opportunity to have its expert inspect the vehicle and its expert's findings and conclusions state that the cause of the fire in the vehicle was the engine replacement. The defendant should be provided the same opportunity to examine the vehicle, and without that opportunity the defendant cannot confront the claim of negligence with incisive evidence. Moreover, the fact that the evidence was destroyed prior to the commencement of this action and prior to defendant requesting it, is not cognizable to a spoliation claim when the spoiler of the evidence had notice that the evidence might be needed for litigation. See, DiDomenico v. C&S Aeromatik Supplies, Inc., 252 AD2d 41, 682 NYS2d 452 [2nd Dept., 1998].
Accordingly, defendant's motion to dismiss the complaint pursuant to CPLR §3126 is hereby granted.
This constitutes the order of this court. [*4]
Court Attorney to notify.
Dated: December 13, 2006
Brooklyn, New York
______________________________
ALICE FISHER RUBIN,
Judge of the Civil Court
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