Jian-Han Guan v Wilson
Annotate this CaseDecided on September 16, 2013
Supreme Court, Richmond County
Jian-Han Guan and Yuen Ling Chau-Guan, Plaintiff(s),
against
Leon R. Wilson, Walter Kammerer, PV Holding Corp., d/b/a Avis Budget Rental, Avis Budget Corp., The City of New York, Police Department of New York City, Defendant(s).
103150/2008
Thomas P. Aliotta, J.
The following papers numbered 1 to 3 were marked fully submitted on the 17th day of
July, 2013:
Papers
Numbered
Motion To Strike Answer of Defendants The City of New York
and Police Department of New York City by Plaintiffs Jian-Han
Guan and Yuen Ling Chau-Guan, with Supporting Papers and
Exhibits
(dated April 14, 2013).................................................................1
Affirmation in Opposition by Defendants City of New York and
Police Department of New York City, with Supporting Papers
and Exhibits
(dated June 25, 2013).................................................................2
Reply Affirmation by Plaintiffs Jian-Han Guan and Yuen Ling
Chau-Guan, with Exhibits
(dated July 16, 1013)..................................................................3
Upon the foregoing papers, plaintiffs' motion (No. 1485—003) to strike the answer of defendants The City of New York and Police Department of New York City is denied.
Plaintiffs Jian-Han Guan and Yuen Ling Chau-Guan ( hereinafter "PLAINTIFFS") commenced this action against, inter alia, the City of New York and its police department (hereinafter, collectively, the CITY) to recover for injuries allegedly sustained by the former, a bicyclist, when he was struck during the police pursuit of a vehicle operated by co-defendant Leon R. Wilson. In moving to strike the CITY'S answer, PLAINTIFFS argue the latter has failed to completely comply with numerous court orders compelling certain discovery and, further, are responsible for the spoliation of evidence. The CITY argues that it has substantially complied with all discovery orders; that it has a reasonable excuse for those instances in which it has not fully complied; and that its failure to preserve the motor vehicle which was driven by the police officers at the time of the accident does not constitute the spoliation of evidence since the CITY had no reason to believe that an inspection of the vehicle was desired by PLAINTIFFS until over five years after the underlying incident. While the extent of the CITY'S compliance with discovery in this case has been problematic, as discussed below, this Court cannot conclude that these deficiencies rise to the level of a "willful and contumacious" failure warranting the striking of an answer. Neither can the Court conclude that the CITY has engaged in the spoliation of evidence.
It is well settled that the striking of a pleading pursuant to CPLR 3126 for failure to comply with court-ordered disclosure should be granted only where the conduct of the resisting party is shown to be willful and contumacious (Goldstein v. Kingsbrook Jewish Med. Ctr., 39 AD3d 816,817 [2d Dept 2007]; Jenkins v City of New York, 13 AD3d 342, 343 [2d Dept 2004]), i.e., that the extreme sanction of striking an answer is only appropriate where there has been a clear showing that the failure to comply was the product of willfulness or bad faith ( Byrne v. City of New York, 301 AD2d 489, 490 [2d Dept 2003]; Harris v City of New York, 211 AD2d 663, 664 [ 2d Dept 1995 ]). Moreover, it has been held routinely that such a failure may be inferred from an unexplained lack of compliance with court orders, or untoward delay in providing full or even partial responses to discovery notices or orders (Emanuel v. Broadway Mall Props., 293 AD2d 708, 709 [ 2d Dept 2002]; Brandes v Pirnie-Baker , 288 AD2d 413, 414 [2d Dept 2001]). Once a plaintiff has satisfied its initial burden of proving willfulness, the burden shifts to the party opposing the sanction to offer a reasonable excuse for its default (Herrera v. City of New York, 238 AD2d 475, 476 [2d Dept 1997]; Furniture Fantasy v Cerrone, 154 AD2d 506, 507 [2d Dept 1989]). Thus, a defendant's failure to offer a reasonable excuse for its non-compliance may result in the striking of its answer. (Espinal v. City of New York, 264 AD2d 806 [2d Dept 1999]).
Since PLAINTIFFS have alleged numerous areas in which the CITY'S disclosure responses are claimed to have been deficient, the Court will address each in turn.
1. Internal Affairs Bureau ("IAB") File
PLAINTIFFS claim that the CITY agreed to provide its full IAB file with reference to [*2]the investigation it conducted into the issue of whether the officers in question engaged in an improper motor vehicle chase of co-defendant Wilson during which he struck PLAINTIFF/bicyclist Jian-Han Guan. While acknowledging that the CITY had turned over recorded interviews obtained from certain police officers as part of that investigation, PLAINTIFFS nevertheless complain that the CITY has failed to turn over the recorded statements given by Officers Maira, Fitzgibbons and Danzi, who were present in the vehicle which was allegedly engaged in the pursuit of co-defendant Wilson. In support of these complaints, PLAINTIFFS argue that such statements are discoverable as party statements and, further, that Detective Sinnott testified at his deposition that he had reviewed the IAB file to refresh his recollection prior to giving that testimony. Accordingly, PLAINTIFFS claim that the entire file should be discoverable.
The CITY argues that by seeking to obtain the full IAB file, PLAINTIFFS are attempting to circumvent this Court's decision of October 6, 2011 in which, after an in camera review, it ordered that 28 separate items from that file be turned over to PLAINTIFFS. With reference to the recorded statements of the designated officers, the CITY argues that it has provided PLAINTIFFS with summaries of the statements given by Detective Maira and Officers Fitzgibbons and Danzi; that it has also turned over the recorded statement of Sergeant Cafaro; and that it will provide an affidavit memorializing its search for any other statements contained in the file. Finally, the CITY denies that Detective Sinnott stated at his deposition that he had reviewed the entire file to refresh his recollection, but that, even if he had, his statement to that effect does not take precedence over the order issued following this Court's in camera review.
Here, the Court has already evaluated the material contained in the IAB file to determine which items are discoverable, and has issued an order to that effect. The review of any or all of that file by a witness prior to testifying at a deposition is insufficient to require the Court to revisit that determination. However, the CITY must comply fully with the order and supply PLAINTIFFS with any other recorded statements contained within the IAB file which have yet to be disclosed in accordance with this Court's order of October 6, 2011. It is further ORDERED that all such disclosure be completed within 30 days from the date of service of a copy of this Decision and Order with notice of entry upon the CITY. Failing same, the CITY is ORDERED to provide appropriate affidavits to PLAINTIFFS within that same time period regarding the efforts made to ascertain the existence of any such statements and/or explain the absence of any statements found to be missing.
2. Depositions of Sergeant Cafaro and Lieutenant Bucciero
PLAINTIFFS claim that they have there been prohibited from deposing the aforementioned officers. It is undisputed that the former was the supervisor of the anti-crime team that allegedly gave chase to co-defendant Wilson and the first officer to arrive at the accident scene, while the latter is the officer having been assigned to conduct the investigation into whether or not the participating officers violated the terms of the Patrol Guide in pursuing said defendant. In particular, PLAINTIFFS claim, inter alia, that the deposition of Sergeant Cafaro has been canceled six times, including one instance in which the witness failed to appear at a confirmed time and place. In addition, they claim that the deposition of Lieutenant Buccieri has been canceled four times. According to PLAINTIFFS, these cancellations, together with the [*3]failure of the CITY to provide them with the last known address of the now-retired Sergeant Cafaro, constitute a willful and contumacious failure to comply with court-ordered discovery.
In opposition, the CITY argues that because Sergeant Cafaro has retired, she is no longer within its control. Nevertheless, it claims to have supplied PLAINTIFFS with her last known address. Additionally, the CITY states that it is willing to pay the transcription and "bust" fees associated with the "confirmed" deposition at which Sergeant Cafaro failed to appear. Finally, the CITY contends that the parties have agreed to re-schedule the deposition of Lieutenant Bucciero.
Since Sergeant Cafaro is no longer within the control of the CITY, it has complied with its discovery obligations by supplying PLAINTIFFS with her last known address. Nevertheless, it is ORDERED that the CITY pay all of PLAINTIFFS' costs and fees associated with the sergeant's failure to make her previously confirmed appearance. To the extent that it has not already done so, it is ORDERED that the CITY must provide such payment within 30 days of the date of service upon it of a copy of this Decision and Order, with notice of entry, or its receipt of the proof of such costs and fees, whichever is later.
3. Intoxicated Driver Testing Unit (IDTU) Video of Defendant Leon R. Wilson
Here, PLAINTIFFS allege that they have not been provided with a copy of the videotape of defendant Wilson's post-accident sobriety test. Further, PLAINTIFFS claim that while the CITY originally agreed to turn over the tape, it has failed to do so, upon advising plaintiffs for the first time in October of 2012 that the video system which was in use the time of the accident on May 22, 2007 had been changed, and that the tape could no longer be accessed. According to PLAINTIFFS, the CITY has never denied that the tape existed, nor has it provided them with any further affidavit explaining its failure to turn over the tape. As indicated in their motion papers, PLAINTIFFS have expressed a willingness to accept the tape in whatever form it presently exists. Upon its failure to do so, PLAINTIFFS seek to have the CITY's answer stricken, or a conditional order entered requiring it to turn the tape over within a specified period of time, or to have its answer stricken. Alternatively, the delivery of an adverse inference charge at trial is requested.
In response, the CITY claims, in part, that at the time of its previous failure, it was unaware of whether the tape still existed. However, since it has now been advised that it "may have" the technical capability to render the tape viewable, it is belatedly attempting to locate the tape. The CITY also notes that it has since supplied PLAINTIFFS with the Technician's Test Report, the Arresting Officer's Report, the Intoxilyzer Report and the Intoxicated Driver Examination Report, each of which has been attached as "Exhibit D" to its affirmation in opposition.
Notwithstanding the CITY'S partial compliance with PLAINTIFFS' demand for those materials in its possession that bear upon the allegation that defendant Wilson was operating a vehicle while under the influence of alcohol or drugs at that time of this accident, it is the opinion of this Court that PLAINTIFFS are nevertheless entitled to a definitive answer as to the continued existence of the IDTU tape, as well as a copy if it still exists . In this regard, the Court finds the CITY'S claim of technological incompatibility with its present system insufficient, for even if the format has changed since the date of this incident, it would not explain its inability, if [*4]any, to locate the tape, or demonstrate that the equipment necessary to render it viewable does not exist . Consequently, it is ORDERED that the CITY supply PLAINTIFFS with a copy of the post-accident IDTU video taken of defendant Wilson within 30 days of the date of service of a copy of this Decision and Order with notice of entry on the CITY, or if the foregoing proves impossible, to supply PLAINTIFFS within the same time period with an affidavit by someone with knowledge stating whether or not such tape ever existed and, if it did, where it may now be found and when and why it left the CITY's possession.
4. Cell Phone Records of Officers Maira and Fitzgibbons
PLAINTIFFS argue that they first sought the cell phone records of Police Officers Maira and Fitzgibbons in a notice for discovery and inspection served in April of 2012. Further, they allege that the parties entered into a stipulation in July of 2012 in which the CITY agreed to furnish these records. However, at his deposition later in 2012, Officer Fitzgibbons testified that he was unable to recall either the name of his cell phone carrier at the time of the accident, or his cell phone number. According to PLAINTIFFS, this claim is highly suspect, as is the officer's further claim that he has no records identifying his carrier or cell phone number at the time of the incident.
For its part, the CITY argues that the officers would not have been using their cell phones at the time of the incident, but that the CITY, in any event and as a sign of its good faith, has supplied PLAINTIFFS with the cell phone records of Officer Danzi, which were not requested. As part of their affirmation in opposition to the instant motion, the CITY has also attached a redacted version of the purported cell phone records of Officer Maira. However, as noted by PLAINTIFFS, the cell phone records which the CITY has attached are those of one "Andrew" Maira, while the first name of the officer involved in this incident is "Dennis". In addition, no information has been provided by the CITY as to the relationship, if any, between these two people and/or whether this was the cell phone being utilized by Officer Maira at the time of the incident.
In the absence of any explanatory information, it is the opinion of this Court that this exhibit cannot be considered to be a satisfactory response to PLAINTIFFS' demand. As a result, it is ORDERED that the CITY supply PLAINTIFFS with the cell phone records of Officer Maira within 30 days of the date of service of a copy of this Decision and Order with notice of entry upon the CITY, or such proof in affidavit form as may be required to explain its inability to do so. Since PLAINTIFFS are already in possession of Officer Fitzgibbons' deposition testimony as to his inability to produce his cell phone records, no further affidavit will be required from him at this time.
5. Memo Book Entries
PLAINTIFFS have also unsuccessfully sought copies of the memo book entries made by Officers Fitzgibbons, Maira and Danzi for the dates on which they were interviewed at IAB with reference to the accident underlying this action. PLAINTIFFS allege that they have never received a response of any kind from the CITY with regard to this demand.
In its response to this motion, the CITY has attached a copy of Officer Fitzgibbons' memo book entries, and affidavits from Officers Maira and Danzi in which (1) the former states that his [*5]memo book was lost several years ago, and (2) the latter indicates that his was destroyed in a flood at his home. In PLAINTIFFS' reply, they argue that police officers are required to safeguard their memo books, and that the failure to produce these records from two of the three officers involved in the accident is proof of their argument that the CITY has engaged in the spoliation of evidence.
On this issue, the Court finds that since the CITY has now supplied the memo book entries of one of the officers and provided PLAINTIFFS with sworn explanations of their absence from the other remaining officers, it has substantially complied with its discovery obligations with reference to these items.
6. Spoliation of Evidence
Finally, PLAINTIFFS argue that the CITY is chargeable with conduct resulting in the spoliation of evidence and that, as a result thereof, its answer should be stricken. Specifically, PLAINTIFFS allege that the underlying accident took place on May 22, 2007; that PLAINTIFFS timely filed a notice of claim on August 16, 2007; that a 50-h hearing was held on January 24, 2008; and that their summons and complaint was filed on July 29, 2008 and served upon the CITY on July 30, 2008. Therefore, PLAINTIFFS argue that the CITY was on sufficient notice of the allegations being made in this matter to, e.g., render improper its October 1, 2008 sale of the police vehicle which the officers were operating at the time of the subject accident, i.e., before PLAINTIFFS were afforded an opportunity to inspect same for any damage it may have sustained in the incident. Further, they allege that the CITY failed to advise PLAINTIFFS of this sale at any time prior to the receipt of a letter from their attorney in October of 2012 requesting an inspection of the vehicle. Since defendant Wilson testified at his deposition that the police vehicle struck his in the rear, forcing him into contact with the PLAINTIFF/bicyclist, PLAINTIFFS argue that preservation of the police vehicle was vital to their ability to pursue their claims against the CITY, and that the latter's failure to preserve the vehicle constitutes the spoliation of relevant evidence.
In response, the CITY argues that PLAINTIFFS did not seek an inspection of the vehicle until five years after the incident took place, and subsequent to the deposition of defendant Wilson in June of 2012. Moreover, the CITY contends that Wilson's claim at his deposition of a "hit-in-the-rear" is highly suspect, since his statements at the time of the accident contained no such allegation, and the photographs of his vehicle taken after the accident (copies of which are attached to the CITY'S responsive papers) reveal no damage to the back of Wilson's car. Consequently, the CITY contends that it lacked any notice that the condition of its vehicle would be relevant or material to this action and, therefore, ought to have been preserved.
Given the length of time which passed before PLAINTIFFS sought to inspect the CITY'S vehicle, it is the opinion and of this Court that the latter had no reason to believe that its preservation would be required. Here, the deposition testimony of defendant Wilson upon which PLAINTIFFS purport to rely was not taken until approximately five years after the accident, and prior to that time, no claim or evidence had been adduced suggesting that there was any impact to the rear of Wilson's vehicle by the pursuing police car. To the contrary, all of the contemporaneous statements and photographs relating to the post-accident condition of Wilson's vehicle suggest that there was no such contact, thereby undermining that aspect of his testimony, [*6]as well as the basis for PLAINTIFFS' claimed need for an inspection. As such, the failure of the CITY to preserve the vehicle, and its subsequent sale approximately 1 ½ years after the subject accident does not constitute the spoliation of evidence.
Accordingly, it is ORDERED that the remainder of PLAINTIFFS' motion is denied without prejudice to any further application they may be advised to make should the CITY fail to comply with any of its obligations hereunder.
This constitutes the Decision and Order of the Court.
E N T E R
Dated: September 16, 2013_/s/___________________________
Hon. Thomas P. Aliotta
J. S. C.
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