Pace University v McQuay N.Y., LLC

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Pace University v McQuay N.Y., LLC 2012 NY Slip Op 30406(U) February 21, 2012 Sup Ct, NY County Docket Number: 602247/05 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 212312012 [* 1] w. 1 1 [* 2] SUPRWYE COURT THH STATE Nnn Yam OF OF C o u m OF NEWYORIG PARTI O -. DECISK)~ ORDER Index No.: 602247/05 Seq. No.: 005. Pace Universrty, Plainttff, -againstMcQuay New York, LLC and McQuay Servb, LLC, Defendah. McQuay New York, LLC, Thlrdparty Plainmf, T.P. Index # 590450/11 -againstMcDonnall & Miller, Third-party Defendant. ITT McDonnell8 Miller Dfvlsbn of IlT Corporation, FILED - Fourth-party Ptalntlff, T.P. Index # 5908 13111 FEB 2 2 2012 -againstNEW YORK COUNTY CLERKS OFFICE McQuay International, Fourth-party Defendant Recitation, 6s twqulrred by CPLR 22 19 [e], o i k e pepem mnsMerwd in the mevlew of this (these) mothn(s): ..................................................... Papam Numbarad Notlce ofMotion, DMA affd., exhlbb . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 FRaffd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 RSFaffirm., exhibits ............................................ 3 DMAReplyafflm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Upon the foregoing papers the decision and order of the court is 88 follows: Pagelof 7 .... [* 3] Third-party defendantl Fourth-party plaintiff ("In McDannell")moves pursuant to CPLR 5 3126 for dlsmiasal of the thlrd+arty complaint, with prejudice, on the basis of spoliation of evidence. Attemathrely, It sserke to SBvBr the third-party and fourth-party action for the case in chief. The motion is opposed by defendarrtlthird-party PlslntKf McQuay New Yark, LLC ("McQuayNY").Issue he8 k n Iolned and the motion was brought shortly before the Note of Issue we8 filed In the underlying adon. The motion Is, therefore, property befora the court and will be considerad on ita merlts. CPLR 5 3212; mil v. CttY of New Yo& , 2 N.Y.3d 848 (2004). Plainttff, Pace University ("Pace")sued McQuay NY for property darnagas resultingfrom the alleged faliure of a chilled water pump on one of it^ *it8 refrigeration and air conditioning unit. Pace allaged that the paddle mechanism on the control flow switch was damaged and evidence m s adduced during discovery that the chilled water pump failure was caused by ths rnahnctlon of the control flow swttch. Paw sued McQuay NY based upon beach o a servlw agreement and also for negligence In f falling to service the system. ITT McDonnell wa3 identHIad during discovery as that manufacturer of the control fl& switch. McQuay NY then commenced the third party action for indemnification andor contrlbution claiming that the chilled water pump failed due to a manufaduring issue and not a maintenance Issue. Durlng discovery IlT McDonnell asked for the prcductfan of the allegedly defective control switch for fnspaction and possible testing. The requests we made r bath to McQuay NY and also to Pace. Each have separately denied having pmsesslon of the control flow switch and, to date, the switch has not baen lomted. ITT McDonnell claims that it requested schematics of the chiller and control flow switch, but they wsm Page2of 7 __ .. . . [* 4] not provided because there are none. ITT McDonnell admilxi that it was provided with a photograph, but It Is of poor quallty and, therefom, according to I McDonnell, of no n use in detsminirtg t e functionality of the control flow switch. IlT McDonnell provides h the affidavit of Florln Rosca, the Manager of Englneerlngfor the 'Flow Control Center of Excellence for iTJ Corporatlon." R o s a opines that based on the limited information avaitable, he cannot evaluate the functionality of the control flow switch. ITT McDonnell argues that because a key piece of evidenca (the control flow switch) has been spoliated, IlT McDonrwll cannot pmpare Its debnws, and the third-party complaint 8hOUld be dbmi8ssd. In opposltlon, McQuay NY claims that following the maifundon, Pace asked McQuay to perform repairs and the repalrs entailed taking the Chiller apart. Peter E&, the McQuay mechanic who oversaw maintenance at Pace, woukl routinely check the LED lighh in the chillers to determlne whether the control flow witch was operational and would note thls on his inspection sheets. The inspection sheets and all senrice reports have been provided to I T McDonnall. IlT McDonnell has alao been provkkd T with prior deposklon testimony, including that of Mr. E&, who testjkd that on April 3, 2001 (before the am-dent) he observed that the control flow switch was stuck i the n mlddls position and that he had to spray the swltch to loosen it; an May 3,2001 the chiller was making banging nolses and that on June 4,2001 the flow awltch was not operational. McQauy New York a b points out that it did not control the day to day operation of the location of the chiller. Dlrcusslon Page3 of 7 [* 5] Spoliation occurs when a litiiant disposes of crucial k m s of evidence involved in an accident before an adversary has 87 opportunity to inspect them. w n d v. I & 1 + York WHousinn Authorb, 238 AD2d 170 ( 1dept. 1097). The destruction may be ~ either intentlonalor negligent. w, Spollatlon can be Improper even if supra. there is no litigation pending, but where litigation Is reasonably anticlpated. Ses. Ortepa v. Ckv of New Yo* 9 NYBd 69 (2007). Once apollatlan is found to have occurred, it is wlthin th8 court's discretion to fashion a remedy. Miller v. Wsverhaeuaer C o m a 3 AD3d 627 (3' dept. 2004). It I the burden of the party seeking sanctions to prove their entitlement to them. s The courts possess broad discretion to provide proportfonate rellef to the party deprived of the of the lost evidence. v. Cltv of New YON, supre. This may indude striking a pleading, precluding proof favorable to the spoilator to restore balanw to ths Iltlgation, requiring the spoilator to pay ea& to develop raplacement evidence or employing an adverse inference instruction at the Mal of thk action. Qrtega Y. Clhr @ NRW supre. The m d y should, however, ba tallorad to the spoilation and its YQ&, effect on the uase. Minava v. Dwne R e m,66 AD3d 402 ( dept. 2009). Although I * sanctions may be Imposed even for negligent epoliation, etrlklng a pleading is usually not warranted unless the evidence is crudal and the rrpoliators conduct e v l n m ~ o m e hlgher degree of culpability. puaso v, W of North Amsrls;ra, 8 2 AD3d 843 (1' dept. W 201 1). For the masons that follow the court denies the m o t h for summary judgment dismfsslng the complaint on the fsaueof spoliation, but without prejudice to ITT McDonnall seeklng such other mmedles as,within the d b m t b n of the Mal Judge,may Page 4 of 7 [* 6] be appropriate. There is no question but that the object of the dispute in the third party actlon I s unavailable for inspection or testing. The control flow Witch i certainly a key piece of s evidence and its abeence certainly makes it mom dffflcultto defend agalnst the dafms. In thls cam however, although McQuay NY had access, post accident, to the flow switch,It dld not have day to day accc)88. There Is no Indication that It was McQuay NYs actions that ~ u t t e d the spotladon of the evidence. Them is no evldence when in the spailiation even occurred. Them is no evldsnce d the higher d e g m of culpability that would invoke the most severe spolIatlon sanction of striklng a pleading. Since striking the pleadfng Is the only sandion requested by I n McDonnell at this time, the motion ia denied. In making thls decision, however, the court 19 i3ltprSSSiY not deciding whether a lasssr form of sandon, might ba warranted, which is left to the dlscratfon of the Justice uhmately asslgned to preside over the trial of this case. I l l McDonnell's alternate request, to ever the thlrd and fourth party actions, l a granted. While the later cornmenad actions involve a common set of facts as the underlying action, the thlrd and fourth party actions were not commenced until almost SIXyears afterthe underlylng action was InMally brought. McQuay NYs arguments that it coukl ot havu brought the daim any sooner are not persuasive. The undertylng inspection documents which according to McQuay NY,identify defects In the control flow switch, were their own records. In any event, any further de4y in the m l u t i o n of the underlying seven year old cas8 k inappropriate. IlT McDonnell claims that it still nebds to complete additional discovery In the third and fourth party actions. The underlying 8 adon, however, 1 Bedy for trial. Balancing these considerations, the s Pagasof 7 [* 7] court flnds that the flrat party actlon brought by Pace should proosad to trial at this time. The third and fourth party actionsare, however, savored. The each of the plalntlfb in thoss adions shall contact the offlce of trial support for instructbns on how ta pro&. Discovery In the third and fourth party actions should be completed on or before May 31,2012. A status conference on the Savored actions is scheduled far Juno 7,2012 at 9 9 0 a.m. The Note of Issue In the third and fourthparty actlona is due on June 8, 2012. CONCLUSION In according with this dedslon, It 1s hereby: ORDERED that third party dafendantlfourth party plaintiff, IlT McDonnelltL Miller, a Division of I n Corporation s, motion for summary judgment d h h l n g the third-party complaint on the basis of spoliation of evidence k~denied , and it is further ORDERED that third party defendarMourth party phlntlff, IlT McDonnell& Miller, a Divlslon of I Corporation's, motlon to sever and separately continue the T third-party complaint and the fourth-party complaint b granted; and tt is further ORDERED that the 3d party plalntm and the 4 party plalntlfF shall each contact the offlce of trial support for instructionson how to proceed; and it ia further ORDERED that the end date for dbcovery In the thlrd-party action and the fourthparty action is May 31,2012; a status conferences in the third-party adon and the fourth-party action Is set far June 7,2012 at G:30 a.m. and the nates of lssue in the third-<arty actlon end the fourth-party actlon LB set for June 8,2012 , and it is further ORDERED that wfthin 30 days hereof the plaintiff i8 to flle thia ddslon and order Page 6 of 7 [* 8] with the clerk in Part 40 who shall place the flrst party actlbn (index # 602247105)on the calendar a8 ready for trial, and it is further ORDERED that any requested relief not otherwise granted herein is denied, and it is further ORDERED that this constitutes the decision and order of the court. Dated: New York, NY February 21,2012 SO ORDERED: FILED FEB 2 2 2012 J.G. J.S.C. NEW YORK COUNTY CLERK'S OfFICE Page70f 7

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