Antonucci v Home Depot U.S.A., Inc.
Annotate this CaseDecided on January 19, 2012
Supreme Court, Dutchess County
Dawn Antonucci and ANGELO ANTONUCCI, Plaintiff,
against
Home Depot U.S.A., Inc., BROOKFIELD ASSET MANAGEMENT, INC., TRICAP PARTNERS, LTD., MAAX BATH, INC. and MAAX US CORP., Defendants.
3194/10
TED A. NOVICK, ESQ.
GAINES, GRUNER, PONZINI & NOVICK, LLP
Attorneys for Plaintiffs
11 Martine Avenue, 8th Floor
White Plains, New York 10606
CHRISTOPHER J. TURPIN, ESQ.
CARTAFALSA, SLATTERY, TURPIN & LENOFF, ESQS.
Attorneys for Defendants
560 White Plains Road, Suite 300
Tarrytown, New York 10591
James D. Pagones, J.
The defendants move for an order for sanctions as a result of the plaintiffs' spoliation of evidence and for summary judgment dismissing the plaintiffs' complaint. The plaintiffs oppose the instant application and cross-move pursuant to CPLR §3126 for an order striking the defendants' answer for failure to comply with outstanding discovery demands. For the reasons set forth more fully here, it is ordered that the defendants' motion is granted and the plaintiffs' complaint is dismissed. It is further ordered that the plaintiffs' motion is denied as academic.
This action for personal injury arises out of an accident that occurred on February 22, 2009. The plaintiffs have asserted causes of action sounding in strict product liability, negligence, breach of warranty and, on plaintiff Angelo Antonucci's behalf, loss of consortium. The plaintiffs contend that plaintiff Dawn Antonucci was injured when the glass shower door in their home broke and large shards of glass lacerated plaintiff Dawn's wrist. The shower door was purchased by the plaintiffs from defendant Home Depot U.S.A., Inc. on December 20, 2008 and subsequently installed by plaintiff Angelo Antonucci. Plaintiff Angelo acknowledged during his [*2]deposition that he had never received any training in the proper installation of shower doors nor had he ever previously installed a shower door.
Shortly after plaintiff Dawn's accident and prior to the commencement of this lawsuit, the plaintiffs discarded the remnants of the glass shower door at issue and installed a replacement glass door. Plaintiff Angelo testified that the replacement door was installed differently from the glass door that allegedly caused the injury, specifically the plastic tracks on the bottom of the doors were no longer configured in the same manner. After commencement of the lawsuit, the plaintiffs were able to locate five small pieces of glass behind a radiator cover in the bathroom. The pieces of glass were inspected by plaintiffs' expert architect, Elise Dann, who concluded that at least four of the five pieces of glass came from the subject shower door. Ms. Dann further opined that the four pieces of glass "appear to be examples of the small particles into which an entire piece of properly treated safety glass should break upon impact, but do not serve to demonstrate that the subject glass door was properly treated." The court finds this statement to be both puzzling and non-determinative.
It is undisputed by the parties that no pictures, videos or other recordings or visual evidence exist which depict either the subject glass door prior to or after the accident or the shards of glass that resulted from its breakage. It is also undisputed that the plaintiffs are not in possession of the serial number for the glass shower door at issue.
It is well established that when a party destroys key physical evidence, the spoliator may be sanctioned by striking its pleading if there is a clear showing that the other party is "prejudicially bereft of appropriate means to confront a claim with incisive evidence." (Lamb v. Maloney, 46 AD3d 857, 858 [2nd Dept. 2007].) Such a sanction may be appropriate even if the evidence was destroyed before the commencement of the action. (DiDomenico v. C & S Aeromatick Supplies, 252 AD2d 41 [2nd Dept. 1998].) Spoliation sanctions, including striking a party's pleading, are not limited to cases where the evidence was destroyed willfully or in bad faith, since a party's negligent loss of evidence can be just as fatal to the other party's ability to present a defense. (Madison Ave. Caviarteria v. Hartford Steam Boilers Inspection & Ins. Co., 2 AD3d 793 [2nd Dept. 2003].)
At the epicenter of the plaintiffs' claims is the glass shower door. There is no dispute among the parties that the plaintiffs disposed, albeit without any indication of bad faith, of the glass shower door at issue and altered the installation configuration of the replacement door before the commencement of this action. As a direct result of the plaintiffs' actions, the defendants never had an opportunity to inspect the subject door or its configuration as it existed at the time of the alleged injury. Critically, no photographs, videos or any other type of recordings or visual evidence were ever taken of the installed door, the tracks on which the door was placed or the pieces of shattered glass. Similarly, the plaintiffs are not in possession of the serial number for the subject door, which would have permitted the defendants to potentially identify where, when and how the subject door was manufactured and whether such [*3]manufacturing caused any alleged defects. As the defendants indicate, without the remnants of the door at issue there is no way for the defendants to defend against the plaintiffs' allegations that any alleged defect existed when the door left the manufacturer. The only remaining pieces of the glass door were, in the opinion of the plaintiffs' expert, properly treated safety glass. While the plaintiffs contend they can still prove their case through the use of circumstantial evidence, the defendants remain in the untenable situation of having to defend the undefendable in the absence of this crucial piece of evidence.
Therefore, because the plaintiffs caused the spoliation of the key piece of evidence before the defendants could examine it, it is ordered that the defendants' motion to strike the plaintiffs' complaint is granted. While the court is aware that striking the plaintiffs' pleading is a drastic sanction, based on the circumstances presented in this case there is no less severe sanction that would appropriately address the spoliation of this crucial physical proof. Any sanction that would sufficiently protect the defendants would necessarily involve precluding the plaintiffs from introducing evidence relating to the allegedly defective shower door, thereby preventing the plaintiffs from establishing their prima facie case.
The Court read and considered the following documents upon these applications:
PAGES NUMBERED
1.Notice of Motion.........................1-2
Affirmation-Turpin..................1-9
Exhibits............................A-E
Memorandum of Law...................1-17
2.Notice of Cross-Motion...................1-2
Affirmation-Novick..................1-21
Exhibits............................A-V
Affidavit-Angelo Antonucci..........1-5
Affidavit-Elise Dann, R.A...........1-8
Exhibit.............................A
Affidavit-Mrudangi Thakur, M.D......1-3
Memorandum of Law...................1-19
3.Affirmation in Opposition-Turpin.........1-5
4.Reply Affirmation-Novick.................1-9
The foregoing constitutes the decision and order of the Court.
Dated:Poughkeepsie, New York
January 19, 2012
ENTER
[*4]
HON. JAMES D. PAGONES, A.J.S.C.
011912 decision & order
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