Morell v East 34th St.

Annotate this Case

Download PDF

Morell v East 34th St. 2018 NY Slip Op 31907(U) August 9, 2018 Supreme Court, New York County Docket Number: 160209/15 Judge: Paul A. Goetz Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 160209/2015 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 08/09/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART 47 Hon. Paul A. Goetz, JSC M orc.,\l INDEX No. -v- lb OZ.of/IS- MOTION DATE - - - - - - MOTION SEQ. No. The following papers, numbered 1 to __.0...__0_,3 _ ___ , were read on this motion t o / f o r - - - - - - - - - - - - - Notice of Motion/Order to Show Cause - Affidavits - E x h i b i t s - - - - - - - - - - - - - No(s). _'_..,l_ _ Answering Affidavits - Exhibits No(s). _"Z..--.,,-_ _ Replying Affidavits No(s). -'3=--- Plaintiff f<.risten Morell COf11Jnenced this action to recover for personal injuries she suffered on November J 2014, when the radiator in her apartment began spewing out steam uncontrollably, causing her to sµffer l:>urns and other injuries. In this motion, plaintiff seeks discovery sanctions against defendant East 341h St~eot LLC, tbe owner of the building, and defendant Citi-Urban Management Corp., the ' management company, based on their spoliation and/or failure to produce key pieces of discovery in this matter, namely, (1) the radiator valve for the subject radiator; (2) emails and texts concerning the incident; and (3) documents retared to the maintenance and inspection of the boiler in the building. ?· ' ~ This is plaintiffs third moti,on for sanctions. By order dated December 22, 2017, this court granted in part plaintiffs first motion.• hoI4ipg that defendants were precluded from offering any evidence at trial regarding the radjator valve because the superintendent, Jonathan Debono, negligently disposed of the valve the day after the Jncid~nt. With respect to the emails and texts, the court authorized plaintiff to renew its motion for sanctions after conducting a deposition of Eric Borkowski, the property manager. Finally, the court ~~dered d~fendants to produce all records for the boiler for two years prior to the ineident or proviq~ a comp:Jiant affidavit of non-existence by February 15, 2018. If defendants failed to do ~o, the court held fflat plaintiff would .be entitled to an adverse inference regarding these records. After conducting Mr. BQ~fmwski's deposition, plaintiff renewed its motion for discovery sanctions. On Jµly 12, 2018, the parties appeared for a court cpnference to discuss the motion. At the conference, the court deqied plahltiffs second motion without prejudice based in part on defendants' production of additidnal b,oiler records after submission of the motion. The court authorized plaintiff to make the present motion for sanctions. Dated:+ Hon. Paul CHECK ONE: ...................................................................... 0 CHECK IF APPROPRIATE: "'.'' ........... ;:.'........................... 0 D Page 0 DENIED SETTLE ORDER DO NOT POST l of 1 of 4 D 4 JSC ~NON-FINAL DISPOSITION CASE DISPOSED CHECK AS APPROPRIATE: ..................... .'.._~~TIONlS: ~ GRANTED ~oetz, D D GRANTED IN PART D OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0REFERENCE [* 2] INDEX NO. 160209/2015 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 08/09/2018 SUPREME COURT OF THE STATE OF NEW YORK NJ:W YORK COUNTY . ·, PRESENT: PART47 Hon. Paul A. Goetz, JSC INDEX No. -v- MOTION D A T E - - - - - - MOTION SEQ. No. The following papers, numbered 1 to __._D"-""o=::...-3 __ _ , were read on this motion t o / f o r - - - - - - - - - - - - - Notice of Motion/Order to Show Cause - Affidavits - E x h i b i t s - - - - - - - - - - - - - No(s). -~1__ '2 No(s). -'>_3.....__ Answering Affidavits - Exhibits No(s). Replying Affidavits Under the common law doctrine of spoliation, which applies to the destruction of the radiator valve, a party may be sanctioned where it negligently loses or intentionally destroys key evidence. See Strong v. City ofNew York, 112 A.D.3d 15 (1st Dep't 2013) (distinguishing rules governing spoliation sanctions for destruction of ESI and non-ES I evidence). Under that standard, spoliation sanctions are appropriate where the spoliator was "on notice that the [evidence] might be needed for future litigation" and the evidence is relevant to such litigation. Id. at 22. With respect to the destruction of ESI evidence, such as the emails and texts, New York courts follow the federal standard articulated in Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003). Under this standard, "[a] party seeking sanctions based on the spoliation of evidence must demonstrate: ( 1) that the party with control over the evidence had an obligatio.n to preserve it at the time it was destroyed; (2) that the records were destroyed with a "culpable state of mind"; and finally, (3) that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense." Voom HD Holdings LLC v. EchoStar Satellite LLC, 93 A.D.3d 33, 45 (1st Dep't 2012) (citing Zubulake). The intentional destruction of evidence is sufficient to presume relevance, as is destruction that is the result of gross negligence. Id. "Failures which support a finding of gross negligence, when the duty to preserve electronic data has been triggered, include: (1) the failure to issue a written litigation hold, when appropriate; (2) the failure to identify all of the key players and to ensure that their electronic and other records are preserved; and (3) the failure to cease the deletion of e-mail. Id. Finally, CPLR 3126 authorizes sanctions based on a party's failure to comply with court-ordered discovery, including the award of attorneys' fees and costs. Jackson v. OpenCommunications Omnimedia, LLC, 147 A.D.3d 709 (1st Dep't 2017). Dated: i -___,...~---- CHECK ONE: ...................................................................... 0 0 Page ~NON-FINAL DISPOSITION CASE DISPOSED CHECK AS APPROPRIATE: ........................ MOTION IS: ~GRANTED CHECK IF APPROPRIATE: ....;......................................... 0 Hon. Paul A. Goetz, JSC 0 DENIED DO NOT POST 0 1.... of 2 of 4 GRANTED IN PART 0 OTHER 0 SETTLE ORDER 0 SUBMIT ORDER FIDUCIARY APPOINTMENT L/ 0REFERENCE [* 3] INDEX NO. 160209/2015 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 08/09/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. Paul A. Goetz, JSC PART47 INDEX No. -v- l~/J 209/ tr MOTION D A T E - - - - - - MOTION SEQ. No. The following papers, numbered 1 to _C>_6.....,,3 _ ___ , were read on this motion t o / f o r - - - - - - - - - - - - - Notice of Motion/Order to Show Cause - Affidavits - E x h i b i t s - - - - - - - - - - - - - No(s). ( Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - - - - - - - - - - No(s). '2... Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - - - - - - - - - - No(s). 3 In this case, defendants pave repeatedly ignored their obligations to preserve and produce relevant discovery and failed to comply with this court's orders. First, defendants disposed of the radiator valve tpe day after the incident. B~sed on the nature and severity of the incident, defendants should have known that plaintiff may assert a.claim against them and that the radiator valve from the broken radiator which jpjured plaintiff was clearly relevant to such litigation. Second, defendants never instituted a litigation ~old and defendants' witnesses admitted during their depositions that they continued to delete their emails and texts on a daily basis during the pendency of this litigation, including up to the time of their {lepositions. Affirmatiqn of Gregory M. Dexter dated July 19, 2018, Exh. A (Debono Tr. 32: 13-35: 19, 38:4-21) and Exh. B (Borkqwski Tr. 44:2-46:3, 52:20-54:22, 95: 12-96: 16). Indeed, Jonathan Debono, defendants' key witne~s anq the superintendent for the building where the incident occurred, testified that he had never even seeri the litigation hold letter from plaintiffs counsel until his deposition. Exh. A (Debono Tr. 29:6.:.32:4). This constitutes gross negligence and the relevance of these documents is therefore presumed. V~om HD, 93 A.D.3d at 45; see also Arbor Realty Funding, LLC v. Herrick, feinstein LLP, 140 A.p.Jd 607, 608 (1st Dep't 2016) (plaintiff's destruction of evidence was at a jninimum grossly pegiigent given its failure to institute a litigation hold). With respect to the boiler records, defendants repeatedly failed to fully comply with the court's orders. Although defendants did produce some docµments in accordance with the court's December 22, 2017 order, such production was flearly incomplef~despite defendants' representation that they did not have any additional records. Indeed, after plaintiff highlighted this deficiency in her motion papers, defendants produced additional records in June 2Ql8. Yet defendants have still failed to produce the boiler log records they are required to maintaiq py l~w, if such records ever existed. Dated: ----iiri----- ~ CHECK ONE: ...............................................,;..................... 0 CASE DISPOSED CHECK AS APPROPRIATE: ........................ MOTION ~S: ~GRANTED CHECK IF APPROPRIATE:.:;•................:.......................... 0 0 Page . Hon. Paul A. Goetz, JSC D DENIED D SETTLE ORDER DO NOT POST 0 _3_ of Lf 3 of 4 jiilNON-FINAL DISPOSITION 0 GRANTED IN PART D OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0REFERENCE [* 4] INDEX NO. 160209/2015 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 08/09/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. Paul A. Goetz, JSC PART 47 f\)~L\ INDEX No. -v- ~b 0 t:r'f J W MOTION D A T E - - - - - - MOTION SEQ. No. The following papers, numbered 1 to 4 CT>3 , were read on this motion t o / f o r - - - - - - - - - - - - - l Notice of Motion/Order to Show Cause - Affidavits - E x h i b i t s - - - - - - - - - - - - - No(s). Answering Affidavits - Exhibits No(s). ~v Replying Affidavits No(s). 3 Taken together, defendants• conduct clearly demonstrates a pattern of neglecting their discovery obligations which warrants sanctions. "However, the sanction must reflect 'an appropriate balancing under the circumstances."' 4rbor Realty, 140 A.D.3d at 609 (quoting Voom HD). Here, the sanction of striking defendants' answer is unwarranted as there are key witnesses that are available to testify and the spoliated evidence does not constitute the "sole means" by which plaintiff can prove her case. Id Accor4iqgly, an adverse inference charge is an appropriate sanction under the circumstances. In addition, qefendants shall be required to pay discovery sanctions to plaintiff for the attorneys' fees and costs incurred in making the three: spoliatioQ motions in the amount of $1,000. Accordingly, it is ORDERED that the motion is granted; and it is further PRDERED that al the time of trial, plaintiff is entitled to an adverse inference charge regarding the radiator valve, the e-mails and texts concerning the incident, and the boiler records; and it is further PRDERED t~~t q~fendants shall reimburse plaintiff for the costs incurred in this matter in the amount of $ J,000, with payment made to plaintiffs counsel and written proof of such payment to be provided to the Clerk of Part 4 7 Wlthin 30 days after service of a copy of this order with notice of entry; and it is further I; • ~: i' PRDERED that, ln the eve11t that timely payment is not made, the Clerk of the court, upon service of this order with notice entry and an affirmation or affidavit of non-payment, shall enter a judgment in favor of plaintiff and ag~inst defendants in the aforesaid sum. pf A- «o:>~~ '.¢611\~ \s ~ fa.... od-o~ Dated: CHECK IF APPROPRIATE: .,............................................ 0 '; l i 0 Page ~NON-FINAL DISPOSITION CASE DISPOSED CHECK AS APPROPRIATE: .................... :.~:MOTION IS: ~GRANTED • AU. ?L'J#r- CHECK ONE: ...................................................................... 0 < rs, ~,g o:I- 'f =io 0 DENIED DO NOT POST 0 lf of 4 of 4 GRANTED IN PART 0 OTHER 0 SETTLE ORDER 0 SUBMIT ORDER FIDUCIARY APPOINTMENT Lf 0REFERENCE

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.