Opinion
# 2012-041-053 Claim No. 111956 Motion No. M-80647
06-22-2012
BABCOCK v. THE STATE OF NEW YORK
Synopsis
Claimant's CPLR 3126 motion to strike defendant's answer in highway negligence claim for alleged spoliation of certain radio logs and tree surveys, and for failing to timely disclose certain photographs, is denied where claimant's filing of certificate of readiness waived spoliation claim and defendant's late disclosure of photographs was not shown to be willful, contumacious, or in bad faith and claimant failed to show that prejudice resulted from either the alleged spoliation of the radio logs and tree surveys or the late disclosure of the photographs. Case information
UID: 2012-041-053 Claimant(s): MATTHEW J. BABCOCK Claimant short name: BABCOCK Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 111956 Motion number(s): M-80647 Cross-motion number(s): Judge: FRANK P. MILANO CONWAY & KIRBY LLC Claimant's attorney: By: Thomas A. Conway, Esq. and Kimberly Boucher Furnish, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: By: Michele M. Walls, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: June 22, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Matthew Babcock (claimant) was injured by a falling tree limb while riding a motorcycle on July 19, 2005 on Route 144 in the Town of Coeymans, New York. A claim was filed on February 8, 2006 alleging, among other things, that defendant New York State negligently failed to properly inspect and maintain the roadway and shoulder of Route 144 and that defendant negligently allowed a dangerous condition, of which it had actual or constructive notice, to exist. Issue was joined upon the filing of defendant's answer on March 20, 2006.
The claim file contains, in part, the following documents, many of which are included in the instant motion's supporting documentation, and reveals that the parties engaged in extensive pre-trial discovery:
1. Claimant's Notice for Discovery and Inspection and Defendant's Response.
2. Claimant's two Notices to Take Deposition Upon Oral Examination.
3. Claimant's Demand for Verified Bill of Particulars.
4. Claimant's Notice to Admit and Defendant's Response.
5. Claimant's Expert Disclosure.
6. At Claimant's request, issuance of dozens of Judicial Subpoenas and Judicial Subpoenas Duces Tecum.
7. Responding to Claimant's Notice, Defendant's Response to Claimant's Seventh Notice to Produce (with several earlier Notices and Responses as well).
8. Claimant's Combined Demands and Defendant's Response.
9. Defendant's Notice of Examination Before Trial.
10. Defendant's Supplemental Expert Witness Response.
11. Defendant's Combined Discovery Demands and Claimant's Response.
12. Responding to Defendant's Demand, Claimant's Second Supplemental Verified Bill of Particulars (with earlier Demands and Responses as well).
13. Responding to Defendant's Demand, Claimant's Sixth Supplemental Response to Combined Discovery Demands (with several earlier Demands and Responses as well).
Beyond the foregoing discovery, while this claim was pending and during the course of a companion Albany County Supreme Court action involving the same accident brought by the claimant against, among others, Robert McDonald, owner of the property from where the tree limb striking claimant fell, both parties to this claim were aware of and participated in, to greater or lesser degree, pre-trial discovery in that action, which included an Examination Before Trial of Robert McDonald.
PROCEDURAL HISTORY
Claimant filed his Note of Issue and Certificate of Readiness in this claim on February 2, 2009. Trial of the claim was scheduled for April 26, 2011. On the morning of trial, claimant submitted to the Court a motion in limine seeking that defendant's answer be struck or that the Court enter a directed verdict in his favor, alleging spoliation of evidence, namely certain tree surveys and radio logs. The Court deferred consideration of the claimant's pre-trial application pending the receipt of potentially relevant trial evidence and further, pending receipt of defendant's response, making no determination of claimant's motion in limine at that time.
A non-jury trial of the claim was conducted on April 26, 2001, April 27, 2011, and April 28, 2011. Each side presented an expert witness, for claimant a botanical horticulturalist and for defendant a forester, to address the condition of the tree and tree limb in question at the time of the accident and whether either constituted a dangerous condition of which defendant had actual or constructive notice, and which, if proven, established negligence by reason of defendant's failure to address and/or remediate.
Claimant called thirteen witnesses at trial and rested. Defendant called two witnesses at trial, Robert McDonald (who was cross-examined by claimant) and its expert witness, Paul Trotta. Late in the day of April 28, 2011, the defendant concluded its direct examination of its second witness, Mr. Trotta. Mr. Trotta had brought files with him to the trial, and, without objection, claimant sought to review those files prior to his cross-examination of Mr. Trotta.
The trial resumed the following morning, April 29, 2011, with the expectation that Mr. Trotta's testimony would conclude, bringing an end to the trial. Mr. Trotta's files contained a series of photographs that Mr. McDonald had sent as an email attachment to defendant's investigator, who hand-delivered them to Mr. Trotta. They were commonly referred to as the "McDonald photographs." The "McDonald photographs," despite having been in the defendant's possession for a number of years and despite timely demands made of defendant during the course of discovery, had never been provided to the claimant.
Some of the photographs, taken by Mr. McDonald the morning after claimant's accident, depict sections of the tree involved in claimant's accident taken before the fallen limbs and sections were disposed of and before they were able to be preserved for further inspection. The "McDonald photographs" were marked as Court Exhibit 1 (18 pages of photographs) and Court Exhibit 2 (5 pages of photographs). The Court's review of these photographs revealed that most, if not all, of the photographs were of poor quality. Court Exhibit 1 is reproduced as "Exhibit Z" in claimant's motion papers and Court Exhibit 2 is reproduced as "Exhibit AA" in claimant's motion papers.
Claimant made an oral application the morning of April 29, 2011 to strike defendant's answer and to have the Court enter judgment on behalf of the claimant or, alternatively, to award claimant costs arising from the defendant's failure to timely disclose the "McDonald photographs." Absent that sanction, claimant suggested costs attendant to further exploring the significance of the "McDonald photographs" be imposed upon defendant. In response, the defendant raised an issue of privilege in that the photos had apparently been in the possession of an investigator (now retired) of the Office of the Attorney General, defendant's legal representative, and that the investigator had provided the photos to defendant expert Trotta.
Given the then uncertainty of the provenance of the "McDonald photographs," their putative status as demanded but unprovided matters of discovery in the instant claim, their involvement, if at all, in the companion Supreme Court action, the then unknown obligation, if any, for defendant to have provided them to claimant, the unknown prejudice, if any, to claimant for defendant having failed to provide them to claimant, and ultimately, their unclear relevance and significance, the Court adjourned the trial, directed the claimant to make a written application to the Court, answerable by defendant, and ordered that an evidentiary hearing on the underlying facts relative to the creation, possession and significance of the "McDonald photographs" be conducted.
On June 30, 2011, that evidentiary hearing took place. At the conclusion of the hearing, the Court directed the claimant to reduce his oral application of April 29, 2011 to writing. Thereafter, claimant moved this Court pursuant to CPLR 3126 to strike defendant's answer and grant judgment to claimant due to "deliberately withholding critical evidence in the form of photographs," and in renewing its pre-trial motion in limine, due to "spoliation of critical evidence, i.e. the NYS DOT tree surveys and radio logs." The defendant has opposed claimant's application.
During the conduct of the June 30 evidentiary hearing, the transcript of which is included in claimant's motion papers as Exhibit FF, claimant called Melissa Smallacombe, the attorney who defended Robert McDonald in the companion Albany County Supreme Court action. Mr. McDonald, intended by claimant to be examined at the evidentiary hearing, had regrettably and unexpectedly died a week earlier. Claimant had prior to Mr. McDonald's passing, in anticipation of the evidentiary hearing, subpoenaed copies of photos on Mr. McDonald's personal computer and subpoenaed the computer itself.
According to Ms. Smallacombe's testimony, Mr. McDonald, the day prior to his passing, purportedly had his step daughter create three disks containing photographs he purportedly took of tree sections and tree limbs shortly after claimant's accident but prior to their removal, photographs which had purportedly been stored on his personal computer. She further related that on the day following his passing, Mr. McDonald's fiancee had mailed her the three disks in two envelopes, one disk for Ms. Smallacombe and one disk each for the claimant and the defendant (these two disks were in one envelope). She brought the two sealed, unopened, envelopes to the evidentiary hearing. At this point, neither the claimant nor defendant had viewed the contents of these disks.
Uncertain of what the disks actually contained, uncertain of their relevance or admissibility at the evidentiary hearing, uncertain of their provenance, and uncertain if they had been disclosed to or reviewed by claimant in the companion Supreme Court action, the Court specifically declined to view the disks or to admit them into evidence (Exhibit FF, pp 118-130).
Notwithstanding the foregoing, claimant as part of his instant application, refers to and relies upon the contents of those disks, now apparently having been viewed by claimant (but not by the Court). One disk and its contents, respectively, are included in claimant's motion papers as Exhibit GG and Exhibit HH (see affidavit dated November 21, 2011 of Thomas Conway, Esq., paragraph 114). Also contained within claimant's motion papers as Exhibit II is an affidavit of his expert trial witness, Wayne Cahilly, in support of claimant's application. Mr. Cahilly, in his affidavit, properly refers to claimant's motion Exhibits Z and AA (which are copies of Court Exhibit 1 and Court Exhibit 2, respectively), but improperly refers to claimant's motion Exhibits GG and HH.
The photographs contained in claimant's motion Exhibits GG and HH are not properly part of the claimant's motion record. Exhibits GG and HH were neither admitted at trial nor at the evidentiary hearing and therefore are not properly part of the trial record or of the evidentiary hearing record. In substance, they may, or may not, be enhanced-quality images (not reproductions) of some of the photographs contained in Court Exhibits 1 and 2. It is specifically because their provenance and relevance could not be established at the evidentiary hearing--who took them, where, when, of what, how and where were they stored, who possessed them, when were they possessed, to whom were they given and when, were they photographs previously provided to claimant in either the instant claim or in his companion Supreme Court action, of what significance are they to claimant's application to strike defendant's answer for failure to provide claimant Court Exhibits 1 and 2, who created the disks and when, did the disks accurately portray the stored photographs--all unanswered questions perhaps answerable, perhaps not, by the deceased Mr. McDonald only, that the Court declined to view them or admit them into evidence at the evidentiary hearing.
Accordingly, as claimant's motion Exhibits GG and HH are not properly part of the motion record they will not be considered by the Court. Further, to the extent that the opinions and conclusions found in the affidavit of claimant's expert, Mr. Cahilly, refer to and/or rely upon Exhibits GG and HH, they are without effect and they will not be considered by the Court.
Finally, the Court observes that it was only those photographs comprising Court Exhibits 1 and 2, not the photos contained in Exhibits GG and HH, which were in the possession of defendant's expert Trotta, not provided by defendant to claimant in a timely manner despite proper demand, that are the subject of claimant's instant application, and it is the failure of the defendant to provide only those photographs that is the basis for the relief sought by claimant in this application under CPLR 3126.
THE RADIO LOGS AND THE TREE SURVEYS
As part of his application, claimant moves pursuant to CPLR 3126 to strike defendant's answer "upon the grounds of spoliation of evidence, in that the defendant destroyed the tree surveys and radio logs which are at issue" (see Preliminary Statement to Claimant's Motion in Limine on Issue of Spoliation). In particular, claimant alleges that defendant "failed to provide radio logs from 1999 to 2004 in spite of Claimant's numerous demands for them . . . [and] failed to provide the annual tree surveys which were allegedly conducted on County Route 144 from 1998 to 2004" (Conway Affidavit of November 21, 2011, paragraph 4).
The accident underlying the claim occurred on July 19, 2005 and the claim was filed in February of 2006. Claimant made demands for disclosure on April 28, 2006 and February 5, 2007, which each sought the subject radio logs and tree surveys, among other things. Defendant responded by advising claimant that claimant's attorney could personally examine defendant's records and make copies of relevant documents and photographs. Claimant's attorney agreed to this procedure (see Affidavit of Kimberly Boucher Furnish, Esq., of November 21, 2011, paragraphs 16-18) and inspected and copied records of defendant beginning sometime after July 18, 2007:
"16. As a result of the State's permission, I spent numerous days going to several DOT facilities in Albany and Saratoga County [sic] to inspect the documents the DOT employees provided to me at each facility. . .
17. During each of these visits, I was also never provided the radio logs from 1999 to 2003 which Claimant needed to review to see if any complaints about the subject tree were made. The State only provided radio logs from 2004 to 2006 and advised those logs prior to that date were missing.
18. Further, during those numerous visits, I was only provided with tree surveys from before 1997 and from 2004 to 2006. The DOT never provided me with the tree surveys from 1998 to 2004 during any of those visits which Claimant needed to review to see if the subject tree was ever inspected. The State advised that they were not in possession of any tree surveys during that time period."
On February 2, 2009, claimant filed and served a Note of Issue and Certificate of Readiness for Trial, stating as follows:
"7. Discovery proceedings now known to be necessary completed.
8. There are no outstanding requests for discovery.
9. There has been a reasonable opportunity to complete the foregoing proceedings."
Despite having been advised that the radio logs from 1999 to 2003 and the tree surveys from 1998 to 2004 were "missing" and "not in [defendant's] possession," claimant served a subpoena on the defendant on August 31, 2010 demanding, among other things, production of the subject logs and surveys. Defendant, not surprisingly, was unable to produce the subpoenaed items. Claimant continued, unsuccessfully, over the next several months to demand production of the radio logs from 1999 to 2003 and the tree surveys from 1998 to 2004 by means of letters and phone calls to defendant's attorney.
On October 19, 2010, a trial date of April 26, 2011 was established. A pre-trial conference was held on March 10, 2011 and claimant was again advised by defendant that the defendant was unable to locate the radio logs from 1999 to 2003 and the tree surveys from 1998 to 2004. A final conference was held on April 7, 2011 at which the parties stated they were each ready for trial.
On the day of trial, April 26, 2011, claimant moved for a directed verdict and/or to strike defendant's answer upon the grounds that defendant allegedly "destroyed the tree surveys and radio logs" (see Preliminary Statement to Claimant's Motion in Limine on Issue of Spoliation).
CPLR 3126 provides as follows:
"If any party . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed, pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them:
1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or
2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or
3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party."
"It is by now well settled that courts have discretion to impose sanctions under CPLR 3126 when a party intentionally, contumaciously or in bad faith fails to comply with a discovery order or destroys evidence prior to an adversary's inspection . . . We have agreed that such sanctions might even be appropriate for the negligent disposal of evidence deemed crucial to the underlying action when the adversary had not been given an opportunity for inspection . . ." (Puccia v Farley, 261 AD2d 83, 85 [3d Dept 1999]; see Steuhl v Home Therapy Equipment, Inc., 23 AD3d 825 [3d Dept 2005]; Dobson v Gioia, 39 AD3d 995 [3d Dept 2007]).
Among other remedies, the trial court "has discretion to impose sanctions for the spoliation of evidence by striking a party's pleading or instructing the jury that it may draw negative inferences from the missing evidence (see CPLR 3126; PJI3d 1:77 [2003])" (Lawrence Ins. Group, Inc. v KPMG Peat Marwick L.L.P., 5 AD3d 918, 920 [3d Dept 2004]).
The Court of Appeals has explained that:
"When parties involved in litigation engage in the destruction of evidence, a number of remedial options are provided by existing New York statutory and common law. Under CPLR 3126, if a court finds that a party destroyed evidence that 'ought to have been disclosed . . . , the court may make such orders with regard to the failure or refusal as are just.' New York courts therefore possess broad discretion to provide proportionate relief to the party deprived of the lost evidence, such as precluding proof favorable to the spoliator to restore balance to the litigation, requiring the spoliator to pay costs to the injured party associated with the development of replacement evidence, or employing an adverse inference instruction at the trial of the action" (Ortega v City of New York, 9 NY3d 69, 76 [2007]).
The Ortega court went on to note at 76, that . . . "'[o]ne traditional method of dealing with spoliation of evidence in New York has been CPLR 3126 where sanctions, including dismissal, have been imposed for a party's failure to disclose relevant evidence'" (citing MetLife Auto & Home v Joe Basil Chevrolet, 1 NY3d 478, 482-483 [2004]).
In Mary Imogene Bassett Hosp. v Cannon Design, Inc. (84 AD3d 1543, 1544 [3d Dept 2011]), the court recently reminded that the "drastic remedy" of striking a pleading should be reserved to those situations where the offending conduct is willful, contumacious, or in bad faith:
"While a court may order dismissal of an action or a claim therein as a penalty for noncompliance with disclosure demands or orders (see CPLR 3126 [3]), this type of drastic remedy is reserved for situations where a party's failure to comply is 'willful, contumacious, or in bad faith' (Harris v City of New York, 211 AD2d 663, 664 [1995])."
This is so because "[s]trong public policy . . . favors the resolution of cases on the merits" (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 800 [2d Dept 2010]).
Puccia (261 AD2d at 85), further instructs that:
"Trial courts are given broad discretion to determine when and to what extent a discovery sanction should be imposed. Such determination must remain undisturbed unless there is a clear abuse of discretion . . . Although reluctant to strike a pleading absent a willful or contumacious failure to facilitate discovery . . . courts will look to the extent that the spoliation of evidence may prejudice a party and whether a dismissal will be necessary as 'a matter of elementary fairness'"(citing Kirkland v New York City Hous. Auth., 236 AD2d 170, 175 [1st Dept 1997]).
The court may decline to impose a sanction where the proponent fails to show that prejudice resulted from the purported loss or destruction of evidence (Gilbert v Albany Medical Center, 13 AD3d 753, 754-755 [3d Dept 2004]; Miller v Weyerhaeuser Co., 3 AD3d 627 [3d Dept 2004], lv dismissed 3 NY3d 701 [2004], appeal dismissed 5 NY3d 822 [2005]).
The filing of a note of issue and certificate of readiness may serve as a waiver of any claim to relief for non-disclosure or spoliation pursuant to CPLR 3126 (Brown v Veterans Transp. Co., Inc., 170 AD2d 638, 639 [2d Dept 1991]).
Where other evidence exists which is sufficient to establish the claim or defense of the proponent of a spoliation motion, sanctions may be denied (Denoyelles v Gallagher, 40 AD3d 1027 [2d Dept 2007]; Myers v Sadlor, 16 AD3d 257, 258 [1st Dept 2005]).
Claimant waived any right to relief pursuant to CPLR 3126 for alleged non-disclosure and/or spoliation of evidence with respect to the "missing" radio logs and tree surveys by filing his note of issue and certificate of readiness more than two (2) years prior to moving for relief on the eve of trial.
"[T]he proper remedies for failure to comply with pretrial discovery orders or for making previously possible disclosure impossible are found in CPLR 3126, which includes the sanction of striking the defaulting party's pleadings . . . However, the plaintiffs failed to move for sanctions under CPLR 3126 at the appropriate time (i.e., prior to trial) and instead filed a note of issue and certificate of readiness, expressly affirming that discovery had been completed . . . Accordingly, the plaintiffs waived any claim regarding noncompliance with pretrial disclosure and precalendar orders" (Brown, 170 AD2d at 639 [2d Dept 1991]).
The following cases further illustrate this point:
In Escourse v City of New York (27 AD3d 319 [1st Dept 2006]), the court held that:
"[B]y filing a note of issue stating that disclosure was complete, plaintiffs waived any defects in defendants' response to the November 1999 conditional order of preclusion . . . Thus, the motion court properly declined to strike defendants' answer."
Similarly, in Iscowitz v County of Suffolk (54 AD3d 725 [2d Dept 2008), the court denied a CPLR 3126 motion to strike an answer where:
"[P]laintiffs waived any objection to the adequacy and timeliness of the disclosure by filing a note of issue and certificate of readiness prior to moving pursuant to CPLR 3126 for the imposition of a discovery sanction."
The court in Rivera-Irby v City of New York (71 AD3d 482, 482 [1st Dept 2010), held that discovery and/or spoliation sanctions:
"[W]ere inappropriate because plaintiffs waived further disclosure by filing a note of issue not reserving their rights or preserving objections [and because] the parks supervisor who discarded his notebook after conducting inspections of the steps where the alleged accident occurred testified that he was unaware of the accident and he did not state when he discarded the notebook sought by plaintiffs, there is no evidence that he improperly did so with knowledge of a pending or imminent lawsuit"
Further, the record shows that claimant was aware that the radio logs and tree surveys were "missing" for as long as three years prior to making his CPLR 3126 motion. Inordinate delay in seeking sanctions for the negligent loss of relevant evidence is a sufficient basis for denial of a CPLR 3126 motion (Ortiz v Board of Educ. of City of New York, 26 AD3d 158, 159 [1st Dept 2006]).
Claimant suggests that there was "no alternative but to file the note of issue because the defendant State admitted destruction or loss of those items" (see Furnish Affidavit of February 7, 2012, paragraph 47). The Court disagrees.
In Horizon Inc. v Wolkowicki (55 AD3d 337, 338 [1st Dept 2008]), the court held that a discovery sanction was warranted despite defendant's argument that the motion for sanctions was untimely because plaintiffs had filed a note of issue and certificate of readiness. The court found that "plaintiffs preserved their objection to the failure to produce in their note of issue," an avenue untaken by claimant here.
Claimant also failed to avail himself of the obvious alternative of moving for relief pursuant to CPLR 3126 prior to filing the note of issue and certificate of readiness rather than moving on the morning of trial (Iscowitz, 54 AD3d at 725).
"The common-law doctrine of spoliation allows for sanctions when a party negligently disposes of evidence; however, the court must consider prejudice resulting from spoliation in determining what type of sanction, if any, is warranted as a matter of fundamental fairness" (Scarano v Bribitzer, 56 AD3d 750, 750-751 [2d Dept 2008).
Claimant bears the burden of demonstrating that he was "prejudiced by the loss of the [records and photographs]" (Callaghan v Point at Saranac Lake, Inc., 83 AD3d 1177, 1179 [3d Dept 2011]). Case law shows that a "less severe sanction or no sanction is appropriate where the missing evidence does not deprive the moving party of the ability to establish his or her case or defense" (Denoyelles v Gallagher, 40 AD3d 1027 [2d Dept 2007; Falcone v Karagiannis, 93 AD3d 632 [2d Dept 2012]; Laskin v Friedman, 90 AD3d 617 [2d Dept 2011]; Merrill v Elmira Heights Cent. School Dist., 77 AD3d 1165, 1167 [3d Dept 2010]).
Claimant filed his note of issue and certificate of readiness fully aware that the contested radio logs and tree surveys were unavailable (see Fernandez v City of New York, 84 AD3d 595, 596 [1st Dept 2011]: "[p]laintiff has waived her claim that defendants' failure to produce 'legible' photographs of the underside of the desk after the accident required an adverse inference that such photographs would have provided notice. The record shows that she was aware of the photographs yet filed a note of issue certifying that discovery was complete".
Presumably, claimant believed that he could prove his claim with the evidence available on February 2, 2009 when the note of issue and certificate of readiness were filed (see JAF Partners, Inc. v Rondout Sav. Bank, 72 AD3d 898 [2d Dept 2010]: "plaintiffs filed a note of issue and a certificate of readiness, which stated both that disclosure was complete and that there were no outstanding discovery requests. Accordingly, they cannot now complain about the adequacy of the defendant's disclosure").
Defendant did provide claimant the radio logs and tree surveys for 2004-2006, the most recent time period preceding claimant's accident of July 19, 2005. Claimant has also obtained extensive disclosure concerning radio logs and tree surveys through pre-trial depositions of several employees of defendant and through the examination of documents related to the radio logs and tree surveys, such as Department of Transportation (DOT) work orders and Supervisor's Daily Reports. The relationship between these records is explained in the February 1, 2012 affidavit of DOT Resident Engineer Douglas Rose:
"6. [T]he absence of the tree surveys should not affect claimant's ability to prosecute his case. Tree Surveys are conducted approximately one time per year by the various DOT residencies. The DOT crews cannot put every tree with any trivial defect on the tree survey. Live trees requiring minor maintenance would not be placed on the tree survey.
7. When DOT highway workers are working on the roadways, they are also charged with the duty of continually looking for any dangers posed on the highways. Had I or any of my staff noticed any imminent danger regarding the tree, it would have generated a work order.
8. This work order is assigned to a highway maintenance worker to perform the work. If work is performed on the roadway, it is recorded on a document called a "Supervisor's Daily Report" ("SDR") . . .
9. . . . Claimant's attorney personally came to Albany County Residency and reviewed all of the SDRs for at least five years' time. Claimant's counsel was provided copies of SDRs for 2003, 2004, and 2005 . . .
14. The Albany Residency maintained radio logs for recording complaints that are telephoned into the Residency. They are called radio logs because the phone is generally answered by a secretary or the maintenance worker that is manning the DOT radio in the Residency.
15. However, the log books are not the only DOT records where complaints would be recorded. If someone called to complain about a tree, it would generate a work order. The same procedures as noted above would be employed: it would be assigned to a highway maintenance supervisor to go out and inspect.
16. If work was performed, it would be recorded on an SDR. Again, claimant's attorney was given the opportunity to inspect all the SDRs and was provided copies of those she requested."
In addition to waiving relief sought pursuant to CPLR 3126 by filing a Note of Issue and Certificate of Readiness, claimant has not established that he was prejudiced to the extent that striking defendant's answer and entering judgment for claimant, or imposition of any other sanction, is warranted.
THE PHOTOGRAPHS COMPRISING COURT EXHIBITS 1 AND 2
On the issue of defendant's failure to timely provide claimant the photographs comprising Court Exhibits 1 and 2, claimant has conflated two arguments concerning prejudice. The instant application must necessarily and specifically concern and address whether any prejudice claimed to have been endured by claimant by the defendant's failure to timely provide the photographs comprising Court Exhibits 1 and 2 is sufficient as a matter of law under CPLR 3126 to require that defendant's answer be struck, and that judgment be entered for claimant.
Claimant has additionally, and improperly, through the attempted use of Exhibits GG and HH, essentially additional unadmitted evidence, sought to demonstrate that his ability to prove his case at trial has been prejudiced. Initially, such a line of argument is not germane to this application, a request for relief under CPLR 3126 by reason of defendant's alleged pre-trial discovery transgressions. Second, by this Decision and Order, the trial will be reopened and claimant will be provided an opportunity to introduce additional evidence. Any claim of prejudice by claimant to his ability to prove his case at trial by failure of defendant to timely provide the photographs of Court Exhibits 1 and 2 is accordingly obviated.
Finally, other than incurring additional expense, the Court is unpersuaded that claimant has been prejudiced by defendant's failure to timely provide the photographs comprising Court Exhibits 1 and 2, for the following reasons:
1) Pre-trial discovery between the parties in this claim was exhaustive.
2) A companion action brought by claimant in Albany County Supreme Court involving the same accident was ongoing during this claim's pendency.
3) Pre-trial discovery in the companion action was conducted by claimant.
4) Claimant deposed the private property owner, Robert McDonald, in the companion action.
5) Claimant knew Robert McDonald possessed and/or authored some photographs of tree sections of the involved tree in the aftermath of claimant's accident.
6) Claimant cross-examined Robert McDonald in the trial of this claim.
7) Despite all of the foregoing, claimant never, until a week or two before Mr. McDonald's untimely death, thought to subpoena the contents of Mr. McDonald's computer to seek any and all photographs Mr. McDonald may have possessed and/or authored of the involved tree or tree sections.
8) Claimant had already interviewed approximately 35 individuals about the tree condition--whether the use of photographs of Court Exhibits 1 and 2 (or of motion Exhibits GG and HH for that matter) would have generated additionally probative proof from those interviewed is simply speculation.
9) The quality of the photographs comprising Court Exhibits 1 and 2 is poor.
10) Testimony of a lay witness to the condition of the cut tree sections, Wayne Everingham, was received both at trial and at the evidentiary hearing. His evidentiary hearing testimony revealed that his trial testimony was unaffected by the absence at trial of the photographs in Court Exhibits 1 and 2.
11) At trial, claimant's expert Wayne Cahilly had already opined, without the use of photographs contained in Court Exhibits 1 and 2 or photographs contained in motion Exhibits GG and HH, that defendant was negligent for failing to address a dangerous condition over which it had actual or constructive notice. Although not considered for its substance related to Exhibits GG and HH, the Court notes that Mr. Cahilly avers, in his most recently provided affidavit, that the enhanced-image photographs of Exhibit GG and HH give him more and different reasons for once again concluding that defendant was negligent.
12) Whether the interior condition of the tree limbs, as depicted in the belatedly provided photographs (or in any enhanced image thereof), is probative of whether defendant had constructive notice of a dangerous condition discernable from observing the tree's exterior prior to the accident, is ultimately for the Court, as the finder of fact, to decide.
13) Claimant will be provided an additional opportunity to present trial evidence.
14) Trial of this claim is a non-jury trial.
15) Claimant has had a consistent theory of defendant liability, extensively supported at trial. His ability to prove entitlement to recovery, if entitled, has not been diminished by defendant's failure to timely provide claimant the photographs of Court Exhibits 1 and 2.
CONCLUSION
The Court notes that even though the papers submitted in support of and in opposition to claimant's instant application comprise several hundreds of pages, many of the claimant's core allegations and defendant's rejoinders involving defendant's allegedly willful and/or negligent failure to provide or produce the photographs, logs or surveys requested by claimant are conclusory, vague, uncertain or speculative. The Court finds, after an exhaustive review of the claim file, of hundreds of pages of deposition testimony and trial testimony, and of hundreds of pages more in support of and in opposition to claimant's instant application, that during the course of the pending claim no conduct of the defendant, or of its legal representative, was willfully or intentionally in derogation of its litigation obligations, that no conduct of the defendant or of its legal representative was contumacious and that, accordingly, no pattern of such conduct on defendant's part, or on the part of its legal representative, or evidence of bad faith, was found.
Claimant has failed to demonstrate, for all of the reasons set forth, that the most drastic of relief sought under CPLR 3126, the striking of defendant's answer and entry of judgment for claimant, is either required or merited.
Claimant's motion is, in all respects, denied, except that claimant is granted leave to apply post-trial, subject to defendant objection and the Court's assessment and determination, for reimbursement by defendant of actual additional expenses incurred by reason of defendant's failure to timely provide claimant the photographs comprising Court Exhibits 1 and 2.
The Court will conference this matter with the parties on August 23, 2012 at 10:30 a.m. to establish a date for the resumption of trial. Its resumption will commence with the cross-examination of defendant's expert Paul Trotta. Thereafter, the parties will be permitted to call additional witnesses, or recall witnesses, if they so choose, claimant to proceed first, such permission limited by the demonstrated relevance and/or probative value of the additional testimony to the defendant's failure to timely provide claimant the photographs comprising Court Exhibits 1 and 2. Additional documentary evidence may be proffered, and, subject to party objection and the Court's determination of admissibility, admitted, again limited by the demonstrated relevance and/or probative value of the additional exhibits to the defendant's failure to timely provide claimant the photographs comprising Court Exhibits 1 and 2.
June 22, 2012
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Motion in Limine on Issue of Spoliation, dated April 26, 2011;
2. Notice of Motion to Strike Defendant's Answer, filed November 21, 2011;
3. Affidavit of Thomas A. Conway, sworn to November 21, 2011, and annexed Exhibits A through JJ, except for Exhibits GG and HH, and as noted, portions of Exhibit II;
4. Affidavit of Kimberly Boucher Furnish, sworn to November 21, 2011;
5. Affidavit of A. Wayne Cahilly, sworn to November 17, 2011, and annexed Exhibits, except as noted;
6. Affirmation in Opposition of Michele M. Walls, dated February 1, 2012, and annexed Exhibits 1 through 3;
7. Affidavit of Douglas Rose, sworn to February 1, 2012;
8. Reply Affidavit of Kimberly Boucher Furnish, sworn to February 7, 2012;
9. Evidentiary Hearing Court Exhibits 1 through 3.