Klewin Bldg. Co., Inc. v Heritage Plumbing & Heating, Inc.
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Klewin Bldg. Co., Inc. v Heritage Plumbing & Heating, Inc. 2008 NY Slip Op 33736(U) February 25, 2008 Supreme Court, Westchester County Docket Number: 10428/05 Judge: Kenneth W. Rudolph Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] To commence the statutory time period of appeals as of right {CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COMMERCIAL DIVISION, WESTCHESTER cou·~~ Present: HON. KENNETH W. RUDOLPH Justice. ------------------------------------------x KLEWIN BUILDING COMPANY, INC. Plaintiff, Index No. 10428/05 Motion Date: 8/10/07 -against- FILED DECISION HERITAGE PLUMBING & HEATING, INC. and THE HARTFORD FIRE INSURANCE CO., Defendants, ------------------------------------------x HARTFORD FIRE INSURANCE CO., incorrectly sued as THE HARTFORD FIRE INSURANCE CO., FEB 2 9 2008 TINiOl"flY C. IDONI cm: >JTY OLCI~{ COUNTY OF WESTCHESTER Third-Party Plaintiff,: -againstNANCY BERARDIS, ANTHONY BERARDIS, JR., LISA BERARDIS and ANTHONY BERARDIS, SR., Third-Party Defendants: ------------------------------------------x The following papers numbered 1 to 46 read on this motion. PAPERS NUMBERED Notice of Motion/Affidavit/Exhibits 1-28/ Memorandum of Law Affidavits in Opposition/Memorandum of Law, Plaintiff Reply Affidavit/Exhibits A-H/Memorandum of Law, Hartford 1-31 32-36 37-46 [* 2] Upon the foregoing papers, it is ORDERED that this motion by defendant, The Hartford Fire Insurance Company s/h/a The Hartford Fire Insurance Co. ("Hartford") for an order, pursuant to CPLR 3126.3., dismissing plaintiff's complaint based on the spoilation of evidence by plaintiff, namely, the discarding of the job site computers containing Klewin's electronic progress records and email, is decided as follows. Plaintiff's Klewin Building Company, Inc. ( "Klewin") complaint seeks $348,000. in liquidated damages against a Hartford performance bond, which Hartford, as surety, executed in connection with a subcontract pursuant to which defendant, Heritage Plumbing & Heating, Inc. ("Heritage') as subcontractor, agreed to perform plumbing work on a project known as the "Woodlands Senior Housing Project" ("project") for Klewin, as contractor. Klewin contends that it sustained damages, including delay damages, as a result of Heritage's alleged discontinuance of work on and abandonment of the project on June 2, 2004. Herein, Hartford contends that the ultimate sanction of CPLR 3126. 3. should be imposed in this construction case based on Klewin' s admitted spoliation and willful destruction of " ... computers containing Klewin's electronic progress records and email through the end of the project, as set forth in a letter to Hartford's attorney by Klewin's attorney, dated April 13, 2007. Hartford contends it has been severely prejudiced as a result of Klewin's willful destruction of electronic progress records; in particular, Hartford has been deprived of evidence pertaining to its defense as to several pivotal issues in this action. In opposition, Klewin acknowledges that the project computers were scrapped; however, there was no spoliation, progress records and email which were contained in the computers were preserved and the information thereon was made available to Hartford in discovery. Since the making of plaintiff's motion, Klewin has made available to Hartford CD-Roms containing project schedules as well as all project documents for inspection by Hartford. Only one progress schedule, WD04, was not previously provided in hard copy to Hartford. -2- [* 3] In particular, plaintiff's attorney avers that his letter advised Hartford only that Klewin's computers were scrapped, not that the electronic progress records and email themselves were destroyed. Hartford had not requested the CD-Roms during or subsequent to its document inspection in January, 2007. With respect to emails, Klewin's project manager, Stephen Tufaro avers that he was responsible for record keeping procedures for the project and it was his practice to print all emails, incoming and outgoing and to file the emails in the appropriate correspondence files which were made available for inspection by Hartford. Hartford reiterates that Klewin's complaint should be dismissed based on Klewin's admitted loss of key physical evidence: email correspondence between Klewin and it surety, which has not been produced. The determination of spoliation sanctions is within the broad discretion of the Court. See, Dennis v. City of New York, 18 AD3d 599. Under the common law doctrine of spoliation when a party negligently loses or intentionally destroys key evidence, thereby depriving the non responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading. See, Baglio v. St. John's Queens Hospital, 303 AD2d 341, 342-343. While reluctant to dismiss a pleading, a drastic remedy, absent willful or contumacious conduct, courts will consider the extent of prejudice to a party and whether dismissal is necessary as a matter of fairness. See, Favish v. Templer, 294 AD2 396. Herein, there is simply no evidence that plaintiff Klewin acted willfully, contumaciously or in bad faith or otherwise engaged in negligent or intentional spoliation with respect to providing Hartford with the progress schedule or emails. Nor has Hartford demonstrated that plaintiff's conduct has fatally prejudiced Hartford's defenses to the instant action. -3- [* 4] In the discretion of the Court, Hartford's motion is denied. The foregoing constitutes the Decision and Order of this Court. Dated: White Plains, New York February 25, 2008 Justice of the Supreme Court TO: TORRE, LENTZ, GAMELL, GARY & RITTMASTER, LLP Attorneys for Plaintiff 100 Jericho Quadrangle, Suite 309 Jericho, New York 11753-2702 LAMBERT & WEISS Attorneys for Defendant/Third Party Plaintiff The Hartford Fire Insurance Company 61 Broadway, Suite 2020 New York, New York 10006 ROBINOWITZ, COHLAN, DUBOW & DOHERTY, LLP Attorneys for Third-Party Defendants 199 Main Street White Plains, New York 10601 -4-
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