Burbige v Siben & Ferber
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Burbige v Siben & Ferber 2012 NY Slip Op 32086(U) July 30, 2012 Sup Ct, Nassau County Docket Number: 010334/07 Judge: Randy Sue Marber 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. [* 1] SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. RANDY SUE MARBER JUSTICE TRIAL/IAS PART 14 RAYMOND BURIGE Plaintiff Index No. : 010334/07 Motion Sequence... , 05 Motion Date... 06/04/12 -against- SIBEN & FERBER , a partnership consisting of STEVEN B. FERBER and GARY 1. SIBEN STEVEN B. FERBER doing business as SIBEN & FERBER, GARY 1. SIBEN doing business as SIBEN & FERBER and LEONAR G. KASALIS Defendants. Papers Submitted: Notice of Motion................................................ Notice of Cross- Motion...................................... Affirmation in Opposition.................................. Upon the foregoing papers , the Defendants , Siben & Ferber, a partnership consisting of Steven B. Ferber and Gary 1. Siben , Steven B. Ferber doing business as Siben & Ferber , Gary 1. Siben doing business as Siben & Ferber, and Leonard G. Kapsalis , move pursuant to CPLR 3101 (d) (1), seeking an Order precluding the Plaintiff, Raymond Burbige , from offering expert testimony at the trial of this action. The Plaintiff, Raymond Burbige , cross moves , pursuant toCPLR 3126 , seeking an Order , granting sanctions including the striking of the Defendants ' answer upon the grounds that inter alia the [* 2] Defendants intentionally or negligently disposed of crucial items of evidence. The motion and cross-motion are decided as hereinafter provided. This is an action The Plaintiff alleges for legal malpractice. Defendants failed to properly prosecute a products liabilty that the case against the manufacturer of a ladder which broke while the Plaintiff was descending it. A jury trial of this legal malpractice action commenced on or about April 6 2010. After the conclusion of the opening statements , the Defendants ' counsel moved , in effect , pursuant to CPLR ~ 4401 , for judgment as a matter of law or , in the alternative , for an offer of proof. This Court (Mahon , J. ) reserved decision. However , before the close of the Plaintiffs case, the Court granted the Defendants ' motion based upon the Plaintiff s failure to make an offer of proofthat he would have been successful in the underlying products liabilty action by offering expert testimony that the ladder from which he fell was defective. On appeal , the Appellate Division , Second Department , on November 1 , 2011 held that the Trial Court erred in granting the Defendants ' motion , which was in effect pursuant to CPLR ~ 4401 for judgment as a matter of law , and dismissing the action before the Plaintiff rested. The Appellate Division stated: A motion for judgment as a matter of law is to be made at the close of an opposing par' s case or at any time on the basis of admissions * * * and the grant of such a motion prior to the close of the opposing part' s case generally wil be reversed as premature even if the ultimate success of the opposing part in this action is improbable * * * Therefore , the judgment must be reversed and a new trial granted [* 3] to the plaintiff. The matter has been restored to this Court' s calender. On February 21 2012 , the Defendants received a "Notice pursuant to CPLR expert witness. The Defendants rejected the disclosure as untimely and as having been made without any ~ 3101 (d)" attempting to identify Dr. C.J. Abraham as the Plaintiffs reasonable explanation for the untimeliness. Upon the instant motion , the Defendants seek an Order of preclusion arguing that as the Plaintiff did not identify his expert during the two years of discovery, or in opposition to the motion for summary judgment , or on the original trial , and because the Plaintiffwaited until the eve of the re- trial to disclose an expert , he should now be precluded from offering the expert testimony at the re- trial of this action. The Defendants argue that this behavior , the failure to disclose his expert witness as required by the provisions ofCPLR ~ 3101 (d), rises to a level of disregard of the Plaintiff s obligation which was wilful and should not be permitted by this Court. The Plaintiff opposes the Defendants ' motion and seeks an Order awarding sanctions , including the striking of the Defendants ' answer upon the grounds that the Defendants intentionally or negligently disposed of crucial items of evidence by failng to inspect , preserve and retain an expert to verify the defective manufacturer ofthe ladder in the Plaintiff s underlying lawsuit. As to the order of preclusion , this Court begins with noting that , here , the Appellate Division has not only directed a new trial but has specifically set forth the [* 4] evidentiary issue inadequately established at the original trial by the Plaintiff; to wit plaintiff() fail ( ed) to make an offer of proof that he would have been successful in the underlying products liabilty action by offering expert testimony that the ladder from which he fell was defective. Consequently, the issue becomes whether the Plaintiff should be permitted to now present evidence that it could have properly presented at the first trial , the expert affidavit necessary to establish his success in the underlying products liabilty action. CPLR ~ 3101 (d) (1) (I) was intended to provide timely disclosure of expert witness information between parties for the preparation (Young v. 297 A. Long Island University, trial purpose of adequate and thorough 2d 320 (2 Dept. 2002)). While a specific time frame is not set forth in that section , a trial court has discretion to preclude expert testimony for failure to reasonably comply with the statute Kingsbridge Heights Care Center, Inc. 28 A. DJd 463 (Id; Schwartzberg Dept. 2006)). Before imposing the drastic remedy of preclusion , the court must consider the reasons for the delay and (Vancott whether or not the failure to disclose was intentional Co. , Inc., 271 A. 2d 438 (2 v. Pacifc Tea Great Atlantic Dept. 2000)). Based upon the papers presented for this Court' s consideration , this Cour fmds that the Plaintiff s failure to disclose his expert was in fact wilful and intentional. Indeed the Appellate Division found that the Plaintiff s offer of proof was inadequate and wholly insufficient due to the absence of an expert affidavit demonstrating the merits of the underlying products liabilty action. Plaintiff, Perhaps more critical is the fact that counsel for the in support of his cross-motion infra again states that "the case law and the [* 5] circumstances do not warant the plaintiff to obtain an expert" (Aff. In Supp. Of Cross- 6). Furthermore , the Plaintiffhas failed entirely, even at this juncture in opposition Motion to the Defendants s instant motion , to proffer a reasonable excuse , under the circumstances for his delay in fuishingthe name and v. Wartski affidavit of his expert (CPLR ~ 3101 (d) (I); C.W Post Campus of Long Is. Univ. 63 A. DJd 916 917 (2 Dept. 2009)). Moreover the Defendants wil clearly be prejudiced should this Court determination be to permit the Plaintiff to now submit the name and testimony of their expert. Although a new trial has been granted by the Appellate Division and further that the Appellate Division has specifically set forth the evidentiary issue inadequately established at the original trial , the fact is that the Plaintiff has , nonetheless , failed to meet his burden , under CPLR ~ 3101 that would sufficiently oppose the Defendants ' entitlement to preclusion. In fact , the Plaintiff has even failed to establish his burden under 22 NYCRR 202.21 (d) that would permit this Court to award post-note of issue discovery Family Practice Assocs. of Rockland, P. c., 2006 WL 6822760 (Sup. Ct. Rockland 2006); Bierzynskiv. New York Central Railroad Co. 2d 804 (1971) rearg. denied 30 N. (cf Scanga aff' d29 59 Misc. 2d 315 (Sup. Ct. Erie 1969) 2d 790 (1972)). This Court finds that the Plaintiff should not be permitted to now offer the affidavit of his expert as a consequence of a tactical decision he made during the course of the pre-note of issue discovery, in opposition to the underlying judgment 863 (2 , or on the original trial Dept. 2008)). (Construction by Singletree , Inc. v. motion for summary Lowe 55 A. 3d 861 [* 6] The Court wil now consider the Plaintiff s cross-motion seeking an Order granting sanctions, including the striking ofthe Defendants ' answer , upon the grounds that inter alia the Defendants intentionally or negligently disposed of crucial items of evidence. Counsel for the Plaintiffbases his entire motion on a spoilation of the evidence argument; that is , counsel for the Plaintiff submits that allegedly for more than 16 years counsel for the Defendants , failed to inspect and preserve the defective ladder, failed to obtain expert reports with respect to the defectively manufactured ladder , and effectively destroyed the key physical evidence of the defective ladder prior to the commencement of the Plaintiff s legal malpractice action. Spoliation of evidence is a factual and legal question in this malpractice case involving an underlying products liabilty claim. Spoliation of evidence occurs where a litigant intentionally or negligently disposes of crucial items of evidence before his or her (Kirkland adversaries have any opportunity to inspect them Authority, 236 A. 2d 170 v. New York City Housing (1st Dept. 1997)). In an action to recover damages for legal malpractice , a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skil knowledge and commonly possessed by a member of the legal profession and that the attorney s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages (Rudolf v. Shayne, Dachs , Stanisci, Corker Meyers, LLP 92 A. 3d 771 772 (2 Sauer 8 N. 3d 438 Dept. 2012)). " To 442 (2007); Verdi v. Jacoby & establish causation , a plaintiffmust show that he or she would have prevailed in the underlying action or would not have incurred [* 7] any damages, but for the lawyer s negligence (Rudolfv. Shayne, Dachs, Stanisci, Corker & Sauer supra at 442). The underlying action was one sounding in products liabilty. The Plaintiff claims herein that the product that was alleged to be defectively designed or manufactured the ladder , was negligently or intentionally lost or destroyed subsequent to his accident and before anyone had an opportunity to inspect it. Although the Plaintiff charges his former attorneys in the underlying action , the Defendants herein , with spoliation of evidence , the Plaintiff makes no attempts to show that the ladder in question was ever in the possession of the Defendants or that it existed or was available when they were retained. Having failed to adequately show that the Defendants were responsible for spoliation of evidence , the Plaintiffs application pursuant to CPLR ~ 3126 for sanctions should be denied (Ortega v. City of New York 9 N. YJd 69 (2007)). The parties ' remaining contentions have been considered and do not warrant discussion. Accordingly, it is hereby ORDERED that the Defendants ' motion for preclusion pursuant to CPLR ~ 3101 is GRANTED; and it is further ORDERED that the Plaintiffs cross-motion seeking an Order granting sanctions , including the striking of the Defendants ' answer , is DENIED. [* 8] All applications not specifically addressed are herewith denied. This shall constitute the decision and order of this Court. DATED: Mineola, New York July 30 , 2012 ,fRaUdY Sue Marber, J. ENTERED AU3 011011 SSAU COUMTY COUNTY CLERK' S OFf\Cf
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