Yager v Thompson

[*1] Yager v Thompson 2003 NY Slip Op 51482(U) Decided on December 2, 2003 District Court Of Nassau County,first District Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.


Digest-Index Classification:Disclosure—Penalty for Failure to Disclose
Decided on December 2, 2003
District Court Of Nassau County,first District

KENNETH YAGER and KATHLEEN YAGER, Plaintiffs,

against

MICHAEL THOMPSON and CATHERINE THOMPSON, Defendants.



INDEX NO. 40574/02-325D



Steven M. Lester, Esq., for the Plaintiffs

325 Merrick Avenue

East Meadow, NY 11554

Epstein, Grammatico & Gann, Frankini & Marotta, for the Defendants

170 Froehlich Farm Blvd. - Suite 102

Woodbury, NY 11797

Kenneth L. Gartner, J.

This is an action between next door neighbors in a quiet Bellmore neighborhood, involving an allegation of nuisance-by-bamboo a veritable plague of bamboo which the defendants allegedly unleashed upon the plaintiffs' property. As judicially determined in Shatto v. Hood, 1990 WL 300832 (Pa. Comm. Pl. 1990), "[b]amboo is not indigenous to this area. . . .Bamboo has underground stems that grow several feet deep. The stems spread rapidly and in order to permanently remove them requires that they be dug out below the roots. The plant is very difficult to control. Conventional herbicides and solvents will not permanently eradicate the roots."

The defendants' primary assertion is that the plaintiffs have spoliated evidence by removing the bamboo from the plaintiffs' property, and therefore should have their complaint dismissed.

According to the plaintiffs, an expert informed them that bamboo roots will penetrate even concrete or steel. They removed the quickly spreading bamboo as an act of desperation, before it grew through their foundation, retaining wall, and swimming pool.

According to the defendants, however, the plaintiffs also removed the bamboo before the defendants had an opportunity to investigate and assess the situation, thus depriving the defendants of the ability to properly mount a defense. [*2]

YAGER V. THOMPSON

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The defendants' motion requires consideration of an aspect of the recently expanded

spoliation doctrine which has been previously addressed by the courts of other states, but not directly in New York.

Beginning in 1993, the defendant began to backfill his backyard by adding materials from different construction sites, and bamboo appeared in areas where he had put the backfill. He let the bamboo grow along the fence line.

Plaintiff first noticed bamboo on his property in the mid 1990's. By approximately 1996, the plaintiff started removing some of the bamboo. Over the years the bamboo continued to grow in both height and area. The plaintiff spoke with the defendant several times through the years concerning the bamboo situation.

In April of 2002, a claims adjuster from the defendants' insurance company visited the plaintiffs' property to inspect and photograph the bamboo condition. The plaintiffs commenced this action in May 2002.

Defendants' counsel contacted plaintiffs' counsel by letter dated February 21, 2003 to obtain an inspection of the plaintiffs' premises. Plaintiffs' counsel responded by a faxed

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response dated February 26, 2003 that defendants' insurance adjuster could call to set up an appointment.

Two weeks later, on March 11, 2003, plaintiffs' counsel faxed another letter to defense counsel stating that he had not received a response to his fax of February 26, 2003. Counsel went on to notify defense counsel that, as a result of the "imminent threat" posed by the bamboo, plaintiffs "were required to remove the bamboo as soon as possible to mitigatge their damages," and therefore had scheduled remediation of the bamboo. The defendants were advised that their time to inspect the premises in its present condition was running out.

An inspection of plaintiffs' property was set for March 24, 2003. When defense counsel arrived at the plaintiff's home, however, he discovered that the bamboo had already been removed and placed in a dumpster in front of plaintiffs' house.

Defendants argue that the ten minute inspection of the plaintiffs' property by the insurance adjuster, in April 2002, prior to litigation, was not sufficient. Defendants point out that [*3]plaintiffs affirmatively contend that the bamboo continued to grow and spread during the pendency of this lawsuit. Consequently, the condition viewed by the adjuster was not the same condition which the plaintiffs had removed prior to the defendants' inspection.

YAGER V. THOMPSON

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Plaintiffs assert that they have provided a number of color photographs which show the condition and extent of the bamboo on the plaintiffs' property before remediation. Copies of invoices from the contractors who performed the remediation were also provided.

"Where a party destroys essential physical evidence and the party seeking that physical

evidence is 'prejudicially bereft of appropriate means to confront a claim with incisive evidence,' the spoliator may be sanctioned by the striking of its pleadings. New York Central

Mutual Fire Insurance Co. v. Turnerson's Electric, Inc., 280 A.D.2d 652, 653 (2nd Dep't 2001), quoting DiDomenico v. C & S Aeromatik Supplies, 252 A.D.2d 41, 53 (2nd Dep't 1998)

Spoliation was originally defined as the intentional destruction of evidence arising out a party's bad faith. See, Kirkland v. New York City Housing Authority, 236 A.D.2d 170,173 (1st

Dep't 1997); Marvin Kagan, Inc. v. 625 Madison Avenue Associates, N.Y. Law Journal, December 8, 1998, at 26, col. 1 (Sup. Ct., N.Y. Co.) (Lebedeff, J.); Klein v. Seenauth, N.Y. Law Journal, April 30, 1999, at 34, col. 5 (Civ. Ct., Queens Co.) (Ritholz, J.). It has since been extended to include the non-intentional destruction of evidence. Id. However, there must still be evidence of negligence, i.e., a failure to exercise reasonableness in the preservation of the evidence. Id. See also, e.g., Heermance and Zeigler, Products Liability: Spoliation Summary and Update, N.Y. Law Journal, July 25, 2003, at 4, col. 4.

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Thus, a claim of spoliation of evidence must be supported by a showing of bad-faith, if intentional; or unreasonable neglect, under all circumstances, if inadvertent. Popfinger v. Terminix International Company Limited Partnership, 251 A.D.2d 564 (2nd Dep't 1998) (repairing and discarding termite-damaged wood prior to commencement of action against exterminator for negligence, not found to be "an intentional attempt to hide or destroy evidence," nor, under the circumstances, negligent). If the destruction was intentional, but was not in bad faith, no spoliation will be found. Id. See also, Greater New York Mutual Insurance Company v. Curbeon, 300 A.D.2d 182 (1st Dep't 2002) (no spoliation found where landlord, who had no notice that litigation was intended, and had given the former tenant prior access, acted in good faith and pursuant to governmental mandate in cleaning up scene of apartment fire; dissent argued that landlord had denied the written request of the tenant's attorney to provide access to the tenant's engineer, for inspection, and that sanction of dismissal should have been held in abeyance pending discovery to determine extent of prejudice caused.). Accord, Minn-Chem, Inc. [*4]v. Richway Industries, Ltd., 2000 WL 1066529, at *1-2 (Ct. App. Minn. 2000).

Courts from other states addressing situations in which the destruction of evidence was, as in the instant case, necessary for purposes of mitigation, have declined to find spoliation.

In Martins v. Interstate Power Company, 2002 WL 534890 (Ct. App. Iowa), aff'd, 652 N.W.2d 657 (Sup. Ct. Iowa 2002), cert. den'd, 123 S. Ct. 1930 (2003), the plaintiff dairy farmers

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were awarded $700,000 by a jury in a nuisance action against the defendant electric utility. The action was brought after the plaintiffs' cows exhibited strange behavior, decreased milk

production, increased somatic cell counts, and weight loss, allegedly attributable to stray electrical voltage produced by the defendant. The jury award was affirmed. The

defendant asserted that during the pendency of the action, without notice to the defendant, the

plaintiffs had moved the affected cattle and some electrical equipment to another farm (where the cattle soon recovered), thus depriving the defendant of the opportunity for its experts to test the

cattle and equipment while they were on the affected property. The intermediate appellate court found that the trial court had properly denied the defendant's motion to dismiss the plaintiffs' complaint, on grounds of the plaintiffs' alleged spoliation of evidence. The appellate court held that "[t]he evidence clearly established that [the plaintiffs] moved their dairy herd to a different farm, in an effort to mitigate their damages, and not for the purpose of 'destroying' evidence." 2002 WL 434890, at *5.

In McLaughlin v. Denharco, Inc., 129 F. Supp. 32 (D. ME 2001), the plaintiff sued (1) a chassis manufacturer, and (2) the manufacturer of a tree delimber boom, for economic losses, including repair costs and loss of income, incurred as a result of the delimber boom's collapse when a metal plate connecting the chassis to the boom failed. The federal district court denied the defendant's motion to exclude testimony of the plaintiff's expert on metal fatigue, as a

sanction for spoliation of evidence. The court noted that the alleged spoliation consisted of the

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plaintiff making welding repairs to the chassis plate, which the plaintiff contended were necessary to mitigate the loss-of-income damages. 129 F. Supp. at 35-36.

Here, there is some ambiguity regarding what led to the destruction prior to the defendants' inspection, but it appears that each party bears a share of the fault. Could the plaintiffs have waited a short period of time, until after the pre-scheduled inspection, to commence the remediation? Possibly. On the other hand, could the defendants, having been put on notice as to the alleged increasing danger posed to the plaintiffs' property by the condition, [*5]and the plaintiffs' growing concern at the situation, pursued their inspection with a greater sense of urgency? Undoubtedly.

The bottom line is that the bamboo was remediated for mitigation purposes, and not in bad faith to harm the defendants' litigation posture.

The question of prejudice is similarly problematic. The defendants have irrevocably been deprived of the opportunity to inspect the bamboo condition at its apogee.

However, the only agent whom the defendants sent to inspect was apparently their attorney, a lay individual with no particular technical expertise. Why his inspection would provide superior evidence to that which the defendants could themselves offer is never explained. YAGER V. THOMPSON

PAGE 9

The defendants for at least 7 years lived next door to the problem, where they could view

and if desired photograph it on a daily basis. The defendants also have the evidence of the bamboo's continued presence on their own immediately adjoining property, and the photographs which they took (or could have taken) of the bamboo from the plaintiffs' property when present in the dumpster.

The defendants also have the results of the inspection made just one year earlier by their insurance adjuster, which although pre-litigation was apparently subsequent to the defendants having notified their carrier of the pendency or potential of the plaintiffs' claim. In addition, the

defendants have the photographs provided by the plaintiffs, and can if desired depose the contractors who performed the remediation.

While none of this completely makes up for the inability to actually inspect the complained-of bamboo in its final natural condition, cumulatively it eliminates much of the prejudice which this inability might otherwise cause.

Under all the circumstances, the defendants have not shown either the bad faith or prejudice necessary for imposition of the drastic sanction which they seek.

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Defendants also move for dismissal of the plaintiffs' claim, pursuant to CPLR Rule 3211(a)(5), as barred by CPLR §214(4), the applicable statute of limitations. They maintain that since the plaintiff testified that he started to remove bamboo in 1996 and this action was not commenced until 2002, the three year statute of limitations applicable to damages for an injury to property had run prior to the commencement of this litigation. [*6]

The plaintiffs' action, however, is not barred by the statute of limitations in light of the continuing nature of the condition. See, Scheg v. Agway, 229 A.D.2d 963 (4th Dep't 1996); Kearney v. Atlantic Cement Co., 33 A.D.2d 848, 849 (3rd Dep't 1969).

The plaintiffs resist the defendants' alternative request for permission to amend their answer so as to plead the affirmative defense of laches on the ground that laches is a defense only to an equitable claim, and that while they sought an injunction in their complaint, "now that the plaintiffs have removed the nuisance from their property, they primarily seek monetary damages" (emphasis added). The defendants do not dispute the legal point, but assert that "if the plaintiffs . . .are no longer seeking equitable relief, then that portion of their complaint should be stricken," while "if they are continuing to seek equitable relief, " then their proposed laches defense is cognizable.

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The defendants are correct.

This Court has not subject matter jurisdiction of a claim for equitable relief. If the plaintiffs do seek equitable relief, it would have been error for the Supreme Court to have under CPLR §325(d) transferred this case here, and the plaintiffs should have moved for re-transfer shortly subsequent to the Supreme Court's transfer order, issued over a year ago. See, Idrobo v. Martin, 2003 WL 22517744 (Dist. Ct., Nassau Co.).

The plaintiffs having failed for such an extended period to do so, their claim for equitable relief is sua sponte dismissed as beyond the subject matter jurisdiction of this Court, and the defendants' request for permission to plead the affirmative defense of laches is therefore denied

as moot. Both of these actions are without prejudice to either any motion for re-transfer and reinstatement which the plaintiffs might choose to make in Supreme Court, or the defendants' ability to reassert their proposed laches defense should the plaintiffs succeed on any such motion.

So Ordered:

DISTRICT COURT JUDGE

Dated: December 2, 2003

Decision Date: December 02, 2003