Campbell v TJX Cos., Inc.

[*1] Campbell v TJX Cos., Inc. 2007 NY Slip Op 52328(U) [17 Misc 3d 1138(A)] Decided on December 7, 2007 Supreme Court, New York County Stallman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2007
Supreme Court, New York County

Melville Campbell and Audrey Campbell, Plaintiffs,

against

The TJX Companies, Inc., Individually and d/b/a Marshalls, Marshalls of MA, Inc., Import Collection, Inc., and Three Hands Corp., Defendants.



106959/05



For Plaintiffs:

Maxwell S. Pfeifer, Esq.

By: Steven E. Million, Esq.

714 East 241st Street

Bronx, New York 10470

(718) 325-5000

For Defendant:

The TJX Companies, Inc., Individually and d/b/a Marshalls, Marshalls of MA, Inc.

McAndrew, Conboy & Prisco, Esqs.

By: Matthew A.D. Canzoneri, Esq.

95 Froehlich Farm Boulevard

Woodbury, New York 11797

(516) 921-8600

For Defendant:

Import Collection, Inc.

Robin, Harris, King, Fodera &

Richman, Esqs.

By: Philip J. DeBernardis, Esq.

1 Battery Park Plaza, Suite 3018

New York, New York 10004

(212) 487-9701

For Defendant:

Three Hands Corp.

Hoey, King, Toker & Epstein, Esqs.

By: Leonard Toker, Esq.

55 Water Street, 28th Floor New York, New York 10041

(212) 612-4200

Michael D. Stallman, J.

Motion sequence nos. 003 and 004 are consolidated for disposition.

In motion sequence no. 003, plaintiffs Melville Campbell and Audrey Campbell move, pursuant to CPLR 3212(a), for summary judgment against defendant Marshalls of MA, Inc. (Marshalls), or in the alternative, for an order striking Marshalls's answer. Defendant Three Hands Corp. cross-moves for summary judgment dismissing the complaint and all cross claims raised against it. That cross motion is unopposed.

In motion sequence no. 004, defendant Import Collections, Inc. (Import) moves for summary judgment dismissing the complaint and all cross claims and counterclaims raised against it, or in the alternative, for an order striking the answer of defendants The TJX Companies, Inc. (TJX) and Marshalls, and granting summary judgment to Import on its cross claims over and against TJX and Marshalls. Marshalls and TJX cross-move for summary judgment dismissing the complaint and all cross claims against them, and granting them judgment on their cross claims against Import for common-law and contractual indemnification.

The complaint alleges that on April 4, 2005, plaintiff Melville Campbell was shopping at a Marshalls store, located on 125th Street, in Manhattan; he attempted to sit on a chair that the store was displaying for sale; the chair immediately broke; and plaintiff was injured when he fell backwards to the floor.

By letter dated April 8, 2005, and addressed to Marshalls's store manager, plaintiffs' attorney advised Marshalls of the accident and directed the store to "preserve the ... chair and all parts and pieces thereof, for our inspection ... ." On the same date, plaintiffs' counsel notified CNA, Marshalls's liability insurance carrier, of the possibility of an impending lawsuit and advised that they were to preserve the chair. By letter dated May 18, 2005, CNA acknowledged having been put on such notice on April 8, 2005. Nevertheless, in an affirmation dated January 18, 2007, after three court orders had been issued requiring discovery and inspection of the chair, counsel for Marshalls advised that neither Marshalls nor CNA had the chair in its possession or knew where it might be.

Chila Neblett, who was assistant store manager at the time, testified at her deposition that she had been called to the scene of the accident and had noticed that one of the legs of the Chair was broken in the middle. She had the chair, and another like it, removed to a stockroom, and the following day, at CNA's direction, she had a member of the store's security department take four Polaroid photographs of the chair. She also testified that on that day, CNA requested that the chair be sent to them. She did not remember whether she had had it sent. Approximately one week after the accident, she ceased working at the store. Mary C. Azzareto, Esq., an associate at the law firm that represents Marshalls and TJX, states in her affirmation that, on May 20, 2006, Ms. Blakely-Izzo of CNA spoke with Ms. Neblett, who was working at a Marshalls store in Brooklyn at that time and was told by Ms. Neblett that, at the time that she left the 125th Street store, that is, several days after Marshalls and CNA were put on notice to retain the chair, the chair was still in the stockroom where she had had it placed. Although this statement is a report of a report, it is admissible as an exception to the hearsay rule as an admission against interest, against both Marshalls and CNA. See Vaden v Rose, 4 AD3d 468 (2d Dept 2004).

When shown bad reproductions of the photographs at his deposition, David Mehdyzadeh, one of the owners of Import, testified that Import had imported chairs similar to the subject chair, from Vietnam where they were manufactured, had sold 1,200 of them to Marshalls, and no longer had any of them in its possession. In sum, neither the chair, nor an exemplar of the same model, is available. Moreover, while counsel for TJX and Marshalls now offers to make the original photographs available, they were not produced in the course of discovery, and plaintiffs' counsel represents to the Court that when, at each deposition, counsel for Marshalls was asked about the original photographs, their whereabouts were said to be unknown. [*2]

Mr. Mehdyzadeh also testified that the chairs were either sent directly from the manufacturer to Marshalls or were shipped to various Marshalls distribution centers. Muja Imerukal, a Marshalls operations manager, testified at his deposition that, before reaching the store, furniture like the chair would have been unpacked at a Marshalls distribution center, tagged, repackaged, and sent on in a Marshalls truck. At the store, the chair would have been unpacked, coded on the bottom, and placed on the selling floor or in storage. However, without the chair, or a identical exemplar, this general testimony, even if accompanied by the photographs, cannot enable either plaintiffs or Import to ascertain, or demonstrate, whether the chair had a design defect, a manufacturing defect, or a store-caused defect. Accordingly, it is impossible for plaintiffs to pursue their product liability claim against TJX and Marshalls, and against Import, or for Import to defend itself against plaintiff, or against Marshalls's cross claims. Moreover, the absence of the chair makes it impossible for plaintiffs to offer more than speculation as to the cause of the accident in their negligence claim against Marshalls and TJX. Indeed, those defendants' cross motion to dismiss the complaint is based upon this practical impossibility, and crystallizes the critical nature of the chair as evidence.

TJX and Marshalls argue that they should not be penalized for the absence of the chair because there is no evidence that they willfully withheld it from discovery. However, it is well established that where critical physical evidence was destroyed, thereby depriving a party of its ability to prove its claim, or to defend against a claim, it is appropriate, as a matter of fairness, to strike the pleading of the spoliator, even if the spoliation has come about through negligence. See e.g. Standard Fire Ins. Co. v Federal Pacific Elec. Co., 14 AD3d 213 (1st Dept 2004); Herrera v Matlin, 303 AD2d 198 (1st Dept 2003); Baglio v St. John's Queens Hosp., 303 AD2d 341 (2d Dept 2003); Kirkland v New York City Hous. Auth., 236 AD2d 170 (1st Dept 1997). This principle applies equally where, as here, the spoliation occurs prior to the commencement of an action against the spoliator, if, as here, the spoliator had been given notice that the subject item should be retained for purposes of litigation. DiDomenico v C & S Acromatik Supplies, 252 AD2d 41 (2d Dept 1998). Mylonas v Town of Brookhaven (305 AD2d 561 [2d Dept 2003]), upon which TJX and Marshalls rely, is not to the contrary. There, the evidence destroyed was relevant, but not critical, to plaintiff's claim.

Here, Marshalls's failure to retain the chair has so severely prejudiced plaintiffs' claims against both Marshalls and Import, as well as Import's defense against the complaint and against Marshalls's cross claims, that it would be fundamentally unfair to saddle plaintiffs and Import with the consequences of Marshalls's failure and the resulting inability to examine and test the instrumentality of the injury, and to produce it at trial. Under these circumstances, it would be particularly unfair to allow Marshalls to argue, as it does here, that Mr. Campbell may have been, at least in part, at fault in causing his accident, without the chair and expert testimony about its structure and load-bearing capacity. Photographs cannot be tested on this issue. In these circumstances, the Court imposes the ultimate remedy of striking Marshalls's answer.

Import's first cross claim against TJX and Marshalls seeks common-law indemnification from those defendants for any judgment that plaintiffs may recover from Import. As discussed above, Marshalls's negligence, or worse, in failing to preserve the chair has well-nigh made it impossible for Import to present a defense against plaintiffs' claim, while hobbling plaintiffs from pursuing their claim. Accordingly, in the event that plaintiffs secure a judgment against Import, Import should be indemnified to that extent by TJX and Marshalls.

With regard to the cross motion of TJX and Marshalls for summary judgment, which was briefly discussed above, the Court notes that it is unseemly for a party to seek to benefit from its own wrongdoing.

Accordingly, it is hereby

ORDERED that plaintiffs' motion is granted to the extent that the answer of The TJX Companies, Inc. and Marshalls of MA, Inc. to the complaint is stricken; and it is further

ORDERED that the cross motion of Defendant Three Hands Corp. is granted and the complaint and all cross claims raised against said defendant are dismissed; and it is further [*3]

ORDERED that the motion of defendant Import Collection, Inc. is granted to the extent that the answer of The TJX Companies, Inc. and Marshalls of MA, Inc. is stricken; and it is further

ORDERED that the motion for summary judgment of defendant Import Collection, Inc. is granted to the extent that it shall recover from The TJX Companies, Inc. and from Marshalls of MA, Inc., severally and collectively, any judgment that plaintiffs may recover from Import Collection, Inc.; and it is further

ORDERED that the cross motion of Marshalls of MA, Inc. and The TJX Companies, Inc. is denied; and it is further

ORDERED that an assessment of damages against defendants The TJX Companies, Inc. and Marshalls of MA, Inc., is directed, and shall take place jointly with the trial of this action; and it is further

ORDERED that a copy of this order with notice of entry be served upon the Clerk of the Trial Support Office (60 Centre Street, Room 158), who is directed, upon the filing of a note of issue and a statement of readiness (if not already filed) and the payment of proper fees, if any, to place this action on the appropriate trial calendar for the assessment hereinabove directed.

Dated: December 7, 2007E N T E R:

New York, New York

s/

_________________________

J.S.C.