Gruberger v Ford Motor Co.

[*1] Gruberger v Ford Motor Co. 2006 NY Slip Op 50377(U) [11 Misc 3d 1063(A)] Decided on January 5, 2006 Supreme Court, Richmond County Maltese, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 5, 2006
Supreme Court, Richmond County

Herbert B. Gruberger and Diane F. Gruberger, Plaintiffs,

against

Ford Motor Company, Defendant.



10645/01

Joseph J. Maltese, J.

Defendant Ford Motor Company (hereafter "Ford") moves by notice of motion for (a) an order pursuant to CPLR 3216 dismissing the complaint in its entirety based upon the alleged spoliation of evidence, or, alternatively, precluding plaintiffs from offering testimony at trial as to the spoliated evidence, and (b) partial summary judgment pursuant to CPLR 3212 dismissing plaintiffs' claims for emotional distress. Plaintiffs Herbert B. Gruberger and Diane F. Gruberger (hereafter "Gruberger") oppose all such applications.

On February 13, 1999, Gruberger's home and most of its contents were destroyed by fire. Gruberger alleges that the fire was caused by a manufacturing defect in their 1992 Lincoln Town Car, which was parked in an attached garage with the ignition "off". The subject vehicle was designed and manufactured by defendant Ford. Following the incident, representatives from Gruberger's auto and home insurance carriers inspected and photographed the subject vehicle. Insofar as it appears, Gruberger plans to rely on those inspections, photographs and reports in prosecuting this action. Shortly after the fire, on or about March 30, 1999, the subject vehicle was sold for salvage and crushed for its recycling value. Approximately two years later, on or about February 5, 2001, Gruberger commenced this action by the filing and service of a summons and complaint seeking damages for lost property [FN1] and emotional distress from Ford. Issue was joined by the service of an answer on or about April 5, 2001. The case was certified ready for trial on December 2, 2004 and a note of issue was filed on January 3, 2005.

In moving to dismiss, Ford relies solely on an attorney's affirmation alleging that it has [*2]been severely prejudiced because it was deprived of any opportunity to examine and inspect the subject vehicle. Without such inspection, Ford alleges that its ability to mount a defense to the prosecution of the action has been seriously impaired. Should the Court decline to dismiss or preclude on the basis of spoilation, Ford alternatively seeks partial summary judgment dismissing Gruberger's claims for emotional distress as a matter of law.

Gruberger opposes Ford's claim of spoliation and alleges that the motion is untimely. Gruberger alleged that Ford, as the seller and lienor of the vehicle through "Ford Motor Credit Company", twice rejected an opportunity to inspect the vehicle after the fire and before it was destroyed. In this regard, Gruberger contends that Ford tacitly condoned the destruction of the subject vehicle in order to collect on its lien. Moreover, Gruberger alleges that Ford's company policy, at the time of the fire, was to reject the inspection of insured vehicles that were alleged to have spontaneously combusted. In addition, Gruberger alleges that Ford's claim of prejudice is greatly exaggerated because the claimed defect had already exhibited itself innureable times in other vehicles of the same design. With regard to the claim for emotional distress, Gruberger alleges that "Ford's motion on this point is predicated on an insufficient connection to the facts." The Grubergers rely on their personal affidavits, which allege their shock and fright endured while witnessing their house burning, as well as the expert affidavit of a certified psychologist, Benjamin Hirsch, PhD, to support their claims of emotional distress.

In reply, Ford has submitted affidavits by (1) Mark Hoffman, a design analysis engineer employed by Ford, in further support for the claim of prejudice, and (2) Doug Lampe, an attorney in the office of Ford's general counsel, in support the claim that an offer to inspect from Gruberger was never received.

In sur-reply, the plaintiffs submitted both an attorneys' affirmation and the affidavit of Herbert B. Gruberger in further support of plaintiff's offer to inspect the vehicle.

SPOLIATION

When a party intentionally destroys physical evidence which severely prejudices an adversary, the offending party may be sanctioned by having its pleading stricken (see Gerber v Rosenfeld, 18 AD3d 812 [2d Dept 2005]; Deveau v CF Galleria at White Plains, 18 AD3d 695 [2d Dept 2005]; New York Cent. Mut. Fire Ins. Co. v Turnerson's Elec., 280 AD2d 652, 653 [2d Dept 2001]). Such a result can even occur if the destruction was unintentional, as the negligent destruction of crucial evidence may be just as devastating to an opponent's case (see DiDomenico v C&S Aeromatik Supplies, 252 AD2d 41 [2d Dept 1998]). However, the apparent harshness of this rule has been mitigated in cases where the lost evidence is not essential to the opponent's case or its destruction is not prejudicial. In such circumstances, a lesser sanction or no sanction at all may be appropriate (see Klein v Ford Motor Co., 303 AD2d 376, 377-378 [2d Dept 2003]), and the Court retains broad discretion in determining how to proceed (see De Los Santos v Polanco, 21 AD3d 397 [2d Dept 2005]).

Following an assessment of the relevant factors, the Court, in this case, finds that Ford's application based upon alleged spoliation (CPLR 3126) must be denied. First, it remains a matter of some controversy whether Ford was timely afforded an opportunity to examine and inspect the subject vehicle. In fact, the motion, as initially made, was not supported by an affidavit from anyone [*3]with personal knowledge [FN2]. Second, in light of the affidavit by Gruberger's expert, Robert L. Gruens, P.E., attesting that the claimed defect has been exhibited by many vehicles of the same design, Ford, as the manufacturer, has not clearly demonstrated that it has been severely prejudiced by the destruction of the subject vehicle. Finally, whenever possible, this Court favors a resolution on the merits (Euro-Central Corp. v Dalsimer, Inc., 22 AD3d 792, [2d Dept, 2005]). Thus, the application to dismiss or preclude pursuant to CPLR 3126 is denied. Next, the Court will consider that part of Ford's motion which is for partial summary judgment dismissing all of the claims sounding in emotional distress.

SUMMARY JUDGMENT

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Rotuba Extruders v Ceppos, 46 NY2d 223; Herrin v Airborne Freight Corp., 301 AD2d 500 [2nd Dept 2003]). On a motion for summary judgment, the function of the court is issue finding, not issue determination (see Weiner v Ga-Ro Die Cutting, 104 AD2d 331, affd 65 NY 732). In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion (Glennon v Mayo, 148 AD2d 580 [2nd Dept 1989]).

In support of dismissal of plaintiffs' claims for emotional distress, Ford contends that "it is well settled in New York that there is no cause of action for emotional distress caused by the destruction of one's property or for emotional distress caused by observation of damage to one's property". In addition, Ford alleges that "there is no evidence to suggest that [these] plaintiffs were ever in fear of any physical danger as they observed the fire consume their home and its contents".

In opposition, Gruberger alleges that the claims for emotional distress are actionable. In support, plaintiffs aver that the questioned claims are not founded solely upon their loss of property or the distress caused by the observation of such loss, but also upon their exposure to the risk of death or physical harm which occurred during the fire and the accompanying fright and shock. In further support, plaintiffs have submitted the expert affidavit of a certified psychologist, Benjamin Hirsch, PhD.

DISCUSSION AND ANALYSIS

It is well established in New York that damages may be recovered for purely emotional harm, but only under very limited circumstances (Moliterno v Community Gen. Hosp., 282 AD2d 441, 442 [2d Dept 2001]). Moreover, in those cases where claims of emotional distress have been recognized, claimants have been required to produce evidence of such a quality as to guarantee the genuineness of the claims (Kaufman v Physical Measurements, 207 AD2d 595, 596 [3rd Dept 1994]). Initially, recovery was only allowed for negligently caused psychological trauma accompanied by contemporaneous or consequential physical injury (Johnson v State of New York, 37 NY2d 378, 381). The rationale behind such limitation lies in the ease with which emotional distress may be [*4]feigned (id. at 381). Under special circumstances, however, recovery has also been permitted in the absence of physical harm (see Kennedy v McKesson Co., 58 NY2d 500, 504; Hering v Lighthouse 2001, 21 AD3d 449 [2d Dept 2005]). e.g., where the claims of emotional distress rest upon evidence substantiating their genuineness (see Kennedy v McKesson Co., 58 NY2d at 504-505; Perry-Rogers v Obasaju, 282 AD2d 231 [1st Dept 2001], lv denied 96 NY2d 712). Thus, special circumstances may be found to exist where the underlying facts render it especially likely that the claim is not spurious (Hering v Lighthouse 2001, 21 AD3d at 451). There is no requirement that claimants be in fear for their personal safety (id.), nor is medical treatment or psychological counseling essential to the claim (Garcia v Lawrence Hosp., 5 AD3d 227, 228 [1st Dept 2004]). Nevertheless, it appears to be well settled that damages are not recoverable for mental distress caused by the intentional or negligent destruction of property (see Muzio v Brown, 302 AD2d 505, 506 [2d Dept 2003]; Probst v Cacoulidis, 295 AD2d 331, 332 [2d Dept 2002]; Dabb v NYNEX Corp., 262 AD2d 1079, 1080 [4th Dept 1999]).

With the aforementioned criteria in mind, it is readily apparent that Gruberger's claims of emotional distress rest upon multiple factual predicates which must be separated in order to determine which may survive (see Curbean v Kibel, 12 AD3d 206, 207 [1st Dept 2004]). To the extent that the complaint seeks to recover damages for emotional distress based upon the destruction of property, such action does not lie and no recovery may be had thereon. However, to the extent that the claim for emotional distress rests upon plaintiffs' experiences in the burning house, a recovery may be had (id.).

Accordingly, it is hereby:

ORDERED that so much of Ford's motion as is for preclusion or dismissal under CPLR 3126 is denied; and it is further

ORDERED that the balance of Ford's motion, which is for partial summary judgment dismissing plaintiffs' claims for emotional distress is granted except as to those claims for damages which are directly attributable to their experiences in the fire allegedly started by a defective Ford product, which claims are severed and shall survive.

DATED: January 5, 2006 Joseph J. Maltese

Justice of the Supreme Court Footnotes

Footnote 1:Plaintiff Herbert Gruberger testified that plaintiffs received approximately $280,000.00 to replace the structure of their house and $190,000.00 for lost contents from their homeowners insurance carrier.

Footnote 2:The affirmation of Ford's counsel clearly lacks probative value (Zuckerman v New York, 49 NY2d 557, 563). Moreover, even if this Court were to credit the belated attempted to cure this defect in its reply affidavits (cf. Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1st Dept 1992]), Ford still has not met its burden of proof on this issue.