Kovit v CVS
Annotate this CaseDecided on December 4, 2006
Supreme Court, Nassau County
Charles Kovit, Plaintiff, 6
against
CVS and CVS/Pharmacy, and Atico International USA, Inc., Defendants. CVS Center, Inc. and Atico International USA, Inc., Third-Party Plaintiff, Shen TAI Industry Co. Ltd., Third-Party Defendant.
4137/04
Lieber & Gary, Esqs.
Attorneys for Plaintiff
11 Park Place, 10th Floor
New York, NY 10007
Mitchell J. Devack, PLLC
Attorneys for Defendants and Third Party Plaintiffs
90 Merrick Avenue, Suite 500
East Meadow, NY 11554
William R. LaMarca, J.
Defendants, CVS and CVS PHARMACY (hereinafter referred to as "CVS") and ATICO INTERNATIONAL USA, INC. (hereinafter referred to as "ATICO"), move for an order, pursuant to CPLR §3126 striking the complaint and dismissing the action as a sanction for spoliation of material evidence, or, in the alternative, for an order, pursuant to CPLR §3212, granting them summary judgment dismissing the complaint. Plaintiff, CHARLES KOVIT, opposes the motion, which is determined as follows:
In this action, plaintiff seeks to recover damages for personal injuries he allegedly sustained on July 12, 2003, when a chaise lounge collapsed as he sat upon it. In his complaint, plaintiff alleges that he purchased the chair at CVS, located at 929 Broadway, Woodmere, New York, sometime before July 12, 2003. Plaintiff alleges that the chair was in a dangerous, defective and unsafe condition which was created by CVS. He further alleges that the chair was in that condition long enough that CVS had actual or constructive notice of it. The court notes that the plaintiff has not [*2]alleged that the chair suffered from a manufacturing or design defect. Negligence, premised upon the sale of a dangerous defective product, is all that is alleged.
ATICO, CVS' purchasing agent, was added as a defendant to this action by Stipulation on November 2, 2005. A third-party action against CVS' outdoor summer chair manufacturer, SHEN TAI INDUSTRY CO., LTD., was commenced on or about December 12, 2005.
The defendants, CVS and ATICO, seek dismissal of the complaint based upon the spoliation of evidence. The chaise lounge that allegedly collapsed was never produced for their inspection. Sanctions for the spoliation of evidence are within the broad discretion of the courts. Iannucci v Rose, 8 AD3d 437, 778 NYS2d 525 (2nd Dept. 2004). The Court "may, under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided [the party] . . . was on notice that the evidence might be needed for future litigation'". Iannucci v Rose, supra , quoting DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, 682 NYS2d 452 (2nd Dept. 1998), and citing Favish v Tepler, 294 AD2d 396, 741 NYS2d 910 (2nd Dept. 2002) and Baglio v St. John's Queens Hosp, 303 AD2d 341, 755 NYS2d 427 (2nd Dept. 2003). Nevertheless, "[r]ecognizing that striking a pleading is a drastic sanction to impose in the absence of wilful or contumacious conduct, courts will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness." Iannucci v Rose, supra , citing Favish v Tepler, supra . Where the moving party is not deprived of their ability to establish their claim or defense, a sanction less severe than striking a pleading is appropriate. Iannucci v Rose, supra , citing Chiu Ping Chung v Caravan Coach Co., 285 AD2d 621, 728 NYS2d 767 (2nd Dept. 2001) and Klein v Ford Motor Co., 303 AD2d 376, 756 NYS2d 271 (2nd Dept. 2003).
At his examination-before-trial, the plaintiff testified that he thought that his wife purchased the chair at CVS earlier in the summer. He further testified that house renovations were done at his home in the Summer of 2004 and that the chair might have gotten thrown out since it was no longer around. In response to this motion, plaintiff's wife states that she purchased the chair that hurt her husband at CVS and that, after her husband's accident, she removed a label from the chair and gave it to plaintiff's attorney. That label has not been produced, either.
The defendants' application to strike the pleading based upon the loss of the chaise is denied. Although this action was commenced on April 30, 2004, the defendants did not seek production of the chair until January 18, 2006. Thus, "[t]he [defendants] failed to demonstrate that the [plaintiff] intentionally attempted to hide or destroy evidence or that they negligently disposed of any key physical evidence after being placed on notice that it might be needed for future litigation.'" Goll v American Broadcasting Companies, Inc., 10 AD3d 672, 783 NYS2d 599 (2nd Dept. 2004) citing Popfinger v Terminix Intl. Co. Ltd. Partnership, 251 AD2d 564, 674 NYS2d 769 (2nd Dept. 1998) and Andretta v Lenahan, 303 AD2d 527, 756 NYS2d 454 (2nd Dept. 2003). As for prejudice, neither party has had the chair examined by an expert. Thus, the parties are at an equal disadvantage regarding the missing chair. "[T]he plaintiff and [defendants] face similar evidentiary difficulties as a consequence of the [chair's] unavailability. Thus, this is not a case in which the plaintiff reaped an unfair advantage in the litigation' as a result of [his] conduct". Lawson v Aspen Ford, Inc., 15 AD3d 628, 791 NYS2d 119 (2nd Dept. 2005) quoting Ifraimov v Phoenix Indus. Gas, 4 AD3d 332, 772 NYS2d 78 (2nd Dept. 2004); see also, De Los Santos v Polanco, 21 AD3d 397, 799 NYS2d 776 [*3](2nd Dept. 2005).
In the alternative, defendants seek summary judgment dismissing the complaint.
To maintain a negligence cause of action, plaintiff must prove the existence of a duty, a breach of that duty and proximate cause. Palsgraf v Long Island R. Co., 248 NY 339, 162 NE 99 (C.A.1928), rearg den. 249 NY 511; see also, Colarusso v Dunne, 286 AD2d 37, 732 NYS2d 424 (2nd Dept. 2001). "Thus, liability in negligence arises when a defendant owes a plaintiff a duty of care and is negligent in taking reasonable measures to prevent injury arising from conduct that is reasonably foreseeable". Colarusso v Dunne, supra , at p. 40. Here, there is "no evidence from which a reasonable person might conclude that the defendants had either actual or constructive knowledge of the alleged defect or that the alleged defect existed at the time the product was sold". Kleinmunz v Katz, 190 AD2d 657, 694 NYS2d 619 (2nd Dept. 1993).
Moreover, even were this court to permit a jury to infer that the chair was defective because it did not function as intended (see, Winckel v Atlantic Rentals & Sales, Inc., 159 AD2d 124, 557 NYS2d 951 [2nd Dept. 1990]), "if a defendant comes forward with any evidence that the accident was not necessarily attributable to a defect, the plaintiff must produce direct evidence of a defect (citations omitted)". Winckel v Atlantic Rentals & Sales, Inc., supra , at p. 127. A specimen label which was attached to some of the chaise lounges sold by CVS reads as follows:
WARNING
DO NOT EXCEED THE MAXIMUM CHAIR
WEIGHT LOAD OF 225 LBS AS THE CHAIR
MAY COLLAPSE, WHICH MAY RESULT IN
SERIOUS PERSONAL INJURY
AND/OR PROPERTY DAMAGE
MADE IN CHINA
At his deposition, the plaintiff testified that, after his accident, his wife told him about a warning label that was attached to the chaise and, significantly, the plaintiff admitted that the warning attached to the chaise reflected the weight limitation. Plaintiff's hospital record indicates that he weighed 245 pounds when he was treated for his injury and he, himself, admitted at his deposition that he weighed between 240 and 245 pounds at the time of his accident. Thus, it is clear that there was a warning on the chaise that plaintiff used that instructed that it was not to be used by anyone who weighed more than 225 pounds and it is equally clear that plaintiff's weight exceeded that limit. In light of this, defendants have established that the "accident was not necessarily attributable to a defect," thereby shifting the burden to plaintiff to produce direct evidence of a defect, which plaintiff has utterly failed to do.
As for res ipsa loquitur, "[f]or the plaintiff to rely on [that] doctrine, the accident must (1) be of a kind that ordinarily does not occur in the absence of negligence, (2) be caused by an agency or instrumentality within the exclusive control of the defendant, and (3) not have been due to any voluntary action or contribution on the part of the plaintiff". Levinstim v Parker, 27 AD3d 698, 815 NYS2D 596 (2nd Dept. 2006), citing Kambat v St. Francis Hosp., 89 NY2d 489, 655 NYS2d 844, 678 NE2d 456 (C.A. 1997). Based on the record before the Court, the doctrine of res ipsa does not [*4]apply.
Accordingly, after a careful reading of the submissions herein, it is hereby
ORDERED, that defendants, CVS and ATICO, are granted summary judgment and the action against them is dismissed.
All further requested relief not specifically granted is denied.
This constitutes the decision and order of the Court.
Dated: December 4, 2006
_________________________
WILLIAM R. LaMARCA, J.S.C
TO:
kovit-cvs,cvs-shentaiindustry,#
01/cplr
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