Opinion
Claim No. 130608
12-08-2021
Raymond Lewis CLAIMANT v. The STATE of New York, Defendant.
Claimant's attorney: GERMAN RUBENSTEIN LLP, By: Joel M. Rubenstein, Esq. Defendant's attorney: LETITIA JAMES, Attorney General of the State of New York, By: Michael T. Krenrich, Esq., AAG
Claimant's attorney: GERMAN RUBENSTEIN LLP, By: Joel M. Rubenstein, Esq.
Defendant's attorney: LETITIA JAMES, Attorney General of the State of New York, By: Michael T. Krenrich, Esq., AAG
Christopher J. McCarthy, J.
Synopsis:
Claimant's Motion to strike State's Answer based upon alleged spoliation of evidence denied. However, Court finds Defendant disposed of relevant evidence and grants Motion to the extent of precluding Defendant from offering certain evidence and finds Claimant is entitled to an adverse inference.
Recitation:
For the reasons set forth below, Claimant's Motion, pursuant to CPLR §§ 3126(2) and (3) to strike the State's Answer, based upon the alleged spoliation of evidence, is denied. However, the Court finds that Defendant disposed of relevant evidence, and the Motion is granted to the extent that the Court precludes the State from offering evidence, testimonial or documentary, as to the condition of the wooden shelf or locker prior to Claimant's accident, nor may the State offer any expert testimony regarding the shelf or locker to refute Claimant's proof. In addition, Defendant may not offer any evidence, testimonial or documentary, regarding lack of notice of the condition of the shelf or locker based upon its failure to retain the cell inventory sheets, prior grievances, and work orders, for cell B1-6. Further, the Court finds that Claimant is entitled to an adverse inference against Defendant on the issue of notice at trial that the destroyed cell inventory sheets, prior grievances, and work orders would not have supported Defendant's position on the issue of notice and would not have contradicted the evidence offered by Claimant, and that the strongest inference will be drawn against Defendant on the issue of notice (see PJI 1:77.3; Flores v State of New York , UID No. 2016-049-102 [Ct Cl, Weinstein, J., Nov. 10, 2016]). Claimant is not relieved of his burden of establishing the existence of a defect and causal relationship between the defect and the accident.
The Claim, which was filed in the office of the Clerk of the Court on November 22, 2017, alleges that, on December 1, 2015, Claimant was incarcerated at Wallkill Correctional Facility (hereinafter, "Wallkill"). It is asserted that, at approximately 10:40 a.m. on that date, Claimant was in cell B1-6 when he was injured by a piece of shelving that fell on him as a result of Defendant's negligence (Claimant's Ex. J. [Claim], ¶¶ 3, 9-10).
Claimant's counsel, in his affirmation in support of the Motion, asserts that, on the morning of December 1, 2015, Claimant was ordered to move from his previous cell to cell B1-6 (Affirmation of Joel M. Rubenstein, Esq. [hereinafter, "Rubenstein Affirmation"], ¶ 6; see Claimant's Ex. A [transcript of Claimant's deposition], pp. 22-24; Claimant's Ex. B [Claimant's Affidavit], ¶ 6). The cell was furnished with a bunk bed and also had, for each incarcerated individual (hereinafter, "II") housed in the cell, a locker, a chair, and a wooden shelf that sat atop each locker (Rubenstein Affirmation, ¶ 8, and Claimant's Ex. B). According to Correction Officer (hereinafter, "CO") Timothy Schreibel, shelves like the one that struck Claimant are supposed to be bolted down to lockers (Rubenstein Affirmation, ¶ 61; see Claimant's Ex. C [transcript of deposition of CO Schreibel], pp. 81-82). The shelves in the B1-6 cell each had a horizontal rod that ran below the shelf, similar to a shower rod. IIs hung their clothing on the rod and stored pots, pans, and other possessions on top of the shelf (Rubenstein Affirmation, ¶ 9; see Claimant's Ex. C, pp. 78-81). At his deposition, CO Schreibel identified a photograph showing a similar type of wooden shelf (although not necessarily the same size, weight, length, or width) and a locker similar to the type that was in the B1-6 cell that was involved in the incident (Rubenstein Affirmation, ¶ 9; Claimant's Ex. C, pp. 78-79).
Both Claimant and the State designated their respective Exhibits with Letters. Thus, the Court will refer to the Party that submitted the Exhibit, in the hope that confusion is avoided.
Claimant had moved all of his belongings to cell B1-6 and left them outside the cell. His new cell mate, Mr. Davis, stood outside the cell, so Claimant could move his possessions, including his mattress, into the cell (Rubenstein Affirmation, ¶¶ 12-14; Claimant's Ex. A, pp. 24-25; Claimant's Ex. B). Claimant entered the cell, sat in the folding chair in front of his locker, and Mr. Davis passed Claimant his draft bags (Rubenstein Affirmation, ¶¶ 15-16; Claimant's Ex. A, pp. 24-25). After a minute or two of sitting in the chair, Claimant leaned back and either the chair or his body made contact with the locker, causing the wooden shelf that was on top of it to fall and strike him in the head and neck, and he began bleeding from his head (Rubenstein Affirmation, ¶¶ 17-18; Claimant's Ex. A, pp. 38-40). According to the logbook, Claimant reported the incident to CO Schreibel at about 12:15 p.m. (State's Ex. II, unnumbered pp. 2-3; Rubenstein Affirmation, ¶ 19). Nurse Sullivan was notified and Claimant was escorted to the infirmary, where his head was wrapped in gauze (Rubenstein Affirmation, ¶ 20; Claimant's Ex. A, pp. 41-42). When he returned from the infirmary, Claimant was advised by a CO to leave the shelf on the floor inside the cell (Rubenstein Affirmation, ¶ 22; Claimant's Ex. A, p. 51). Prior to the incident, Claimant did not observe the shelf to be loose or wobbling, and he did not have any reason to believe that it was not properly secured (Rubenstein Affirmation, ¶ 23; Claimant's Ex. A, p. 38).
On February 11, 2016, Claimant served a Claim upon Defendant (Claimant's Ex. G; State's Ex. A). Defendant served a Verified Answer, dated March 22, 2016, upon Claimant (Claimant's Ex. H). By stipulation dated April 8, 2016, the parties agreed to treat the document served upon Defendant on February 11, 2016 as a Notice of Intention to File a Claim (Claimant's Ex. I). On November 22, 2017, the instant Claim was electronically served and filed (Claimant's Ex. J; State's Ex. B). Defendant served and filed its Verified Answer on January 10, 2018 (Claimant's Ex. K; State's Ex. C).
The parties engaged in extensive discovery, during which it was learned that the shelf from cell B1-6 that fell and injured Claimant was taken out of use on December 1, 2015 and never was used again. It also was discovered that the shelf was destroyed sometime around May 2016 (Affirmation of Michael T. Krenrich, Esq., Assistant Attorney General [hereinafter, "Krenrich Affirmation"], ¶ 41; State's Ex. W [Supplemental Affidavit of Robert Milby (dated July 2, 2020)], ¶ 5). Further, there are no documents setting forth the dimensions or weight of the shelf (Rubenstein Affirmation, ¶ 60; State's Ex. W, ¶ 5). In addition, Mr. Milby, the Wallkill Plant Superintendent, stated that there is no way of knowing if the locker that now is in cell B1-6 is the same locker that was in the cell on December 1, 2015 (Claimant's Ex. L [Supplemental Affidavit of Robert Milby (dated November 5, 2020)], ¶ 6; State's Ex. EE, ¶ 6). It also was discovered that cell inventory sheets, prior grievance complaints regarding cell B1-6, and prior work orders for cell B1-6, were destroyed by the State prior to the time Claimant's counsel made several Discovery Demands for them during 2019 (Rubenstein Affirmation, ¶¶ 64, 67, 69; Claimant's Exs. M, O, & Q; Reply Affirmation of Joel M. Rubenstein, Esq. [hereinafter, "Rubenstein Reply Affirmation"], ¶¶ 53-71; Krenrich Affirmation, ¶¶ 47-53).
"A party that seeks sanctions for spoliation of evidence must show [1] that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, [2] that the evidence was destroyed with a ‘culpable state of mind,’ and [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’ " ( Pegasus Aviation I, Inc. v Varig Logistica S.A. , 26 NY3d 543, 547-548 [2015], quoting VOOM HD Holdings LLC v EchoStar Satellite L.L.C. , 93 AD3d 33, 45 [1st Dept 2012], quoting Zublake v UBS Warburg LLC , 220 FRD 212, 220 [SD NY 2003] ; Gitman v Martinez , 169 AD3d 1283, 1286 [3d Dept 2019] ).
The obligation to preserve evidence arises when a party is on notice that the matter will likely result in litigation (Gitman v Martinez , supra at 1287; see VOOM HD Holdings LLC v EchoStar Satellite L.L.C. , supra at 43 ["when a party is on notice of a credible probability that it will become involved in litigation"]). Such an obligation to preserve evidence has been found, for example, when the party has immediate notice of an accident resulting in an injury ( Erdely v Access Direct Sys., Inc. , 45 AD3d 724 [2d Dept 2007], lv dismissed 10 NY3d 901 [2008] ). "While a litigant is under no duty to keep or retain every document in its possession it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request" (Zublake v UBS Warburg LLC , supra at 217 [internal quotations and citations omitted]). Indeed, the "fact that relevant information is destroyed before a notice or order to produce is served does not preclude application of sanctions under CPLR 3126" ( Ecor Solutions, Inc. v State of New York , 17 Misc 3d 1135 [A], *5 [Ct Cl 2007], quoting Hallock v Bogart , 206, AD2d 735 [3d Dept 1994]).
"A ‘culpable state of mind’ for purposes of a spoliation sanction includes ordinary negligence" (VOOM HD Holdings LLC v EchoStar Satellite L.L.C. , supra ; see Zublake v UBS Warburg LLC , supra ; LaBuda v LaBuda , 175 AD3d 39, 41 [3d Dept 2019] ; Markel Ins. Co. v Bottini Fuel , 116 AD3d 1143, 1144 [3d Dept 2014] ; Cummings v Central Tractor Farm & Country , 281 AD2d 792, 793 [3d Dept 2001], lv dismissed 96 NY2d 896 [2001] ).
As for relevance, "[w]here the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed (see Zublake [v UBS Warburg LLC , supra ]). On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed documents were relevant to the party's claim or defense" (Pegasus Aviation I, Inc. v Varig Logistica S.A. , supra ). Thus, under the proper circumstances, spoliation sanctions may be imposed when "a litigant negligently disposes of crucial items of evidence before the opposing party has had an opportunity to view them" ( Bruno v Peak Resorts, Inc. , 190 AD3d 1132, 1133 [3d Dept 2021], quoting Hartford Fire Ins. Co. v Regenerative Bldg. Constr. , 271 AD2d 862, 863 [3d Dept 2000] ; see LaBuda v LaBuda , supra ; see also Gitman v Martinez , supra ).
Here, the accident occurred on December 1, 2015 and Claimant was treated for his injuries that same day. Moreover, it is undisputed that Defendant received Claimant's Notice of Intention to File a Claim on February 11, 2016 (see Claimant's Exs. G & I). Thus, the Court finds that Defendant knew, or should have known, that it was under an obligation to preserve evidence by no later than February 11, 2016 ( Strong v. City of New York , 112 AD3d 15, 22 [1st Dept 2013] ; Stickelmyer v State of New York , UID No. 2020-015-222 [Ct Cl, Collins, J., Jan. 16, 2020]). Yet, it also is undisputed that Defendant disposed of the wooden shelf sometime around May 2016, that it never acted at any time to preserve or identify the locker that was in Claimant's cell at the time of the accident, and, further, that it destroyed the cell inventory sheets, prior grievance complaints, and prior work orders regarding cell B1-6 at some point between the filing of the Notice of Intention in 2016 and the Discovery Demands made in 2019 in accordance with its routine document retention/destruction policies. However, once a party reasonably anticipates litigation, it must suspend such routine policies and, instead, "put in place a ‘litigation hold’ to ensure the preservation of relevant documents" (VOOM HD Holdings LLC v EchoStar Satellite L.L.C. , supra at 36, quoting Zublake v UBS Warburg LLC , supra at 218). In fact, the Chief of the Attorney General's Claims Bureau wrote to the Deputy Commissioner and General Counsel of the Department of Corrections and Community Supervision on December 1, 2017, shortly after the Claim was served, to advise and ensure that such a litigation hold was put in place in connection with this Claim (State's Ex. A). Had such a litigation hold been effectuated at that time, many of the relevant records should have been preserved. Thus, the Court concludes that Defendant should have been aware of the likelihood of litigation at the time the wooden shelf and requested documents were destroyed, and that it should have preserved or otherwise identified the locker. Further, the Court finds that Defendant knew, or should have known, that those items were relevant to this Claim, were reasonably calculated to lead to the discovery of admissible evidence, and it was reasonably likely that they would be requested by Claimant during discovery.
As to the state of mind portion of the analysis, the Court concludes that there is insufficient evidence to find that Defendant acted intentionally, wilfully, or contumaciously. At the same time, it is manifest that the State's loss of the wooden shelf and the requested documents, and its failure to preserve or identify the locker, were the product of negligence, which in and of itself evidences a sufficiently culpable state of mind for purposes of a spoliation sanction.
The Court further finds that the destroyed evidence is relevant to Claimant's Claim and would support the Claim. Here, the relevance of the wooden shelf and locker is demonstrated by Claimant's professional engineer expert's affidavit stating that, absent the ability to inspect the actual shelf, locker, and the fasteners, he is unable to determine:
a. Whether or not the shelf had been fastened to the locker,
b. [The] extent the shelf had been fastened to the locker, the manner in which the shelf had been improperly fastened to the locker,
c. Whether the State failed to properly maintain the shelf and the anchor (or similar device) fastening it to the locker if installed properly in the first place, and
d. Whether the State used the proper anchor (or similar device) to fasten the shelf to the locker.
(Claimant's Ex. R [Affidavit of Scott Silberman, P.E.], ¶ 19).
As previously noted, Defendant concedes that there are no documents setting forth the dimensions or weight of the shelf or the locker. Moreover, the shelf is relevant because it is "the very instrumentality giving rise to [Claimant's] injuries" ( Abulhasan v Uniroyal-Goodrich Tire Co. , 14 AD3d 900, 903 [3d Dept 2005] ; Cutroneo v Dryer , 12 AD3d 811 [3d Dept 2004] ; Cummings v Central Tractor Farm & Country , 281 AD2d 792, 793 [3d Dept 2001], lv dismissed 96 NY2d 896 [2001] ). The locker is relevant because the shelf was supposed to be affixed to it.
Any cell inventory sheets, work orders, or grievances filed by IIs regarding cell B1-6 are relevant as to the issue of whether Defendant had notice that the wooden shelf was not properly attached to the locker in that cell.
In fashioning its sanction, the Court "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" ( Weiss v Bellevue Maternity Hosp. , 121 AD3d 1480, 1481 [3d Dept 2014] ; Bruno v Peak Resorts, Inc. , supra at 1134; Miller v Weyerhaeuser Co. , 3 AD3d 627, 628 [3d Dept 2004] [internal quotation marks and citations omitted], lv dismissed 3 NY3d 701 [2004], lv dismissed 3 NY3d 701 [2004], appeal dismissed 5 NY3d 822 [2005] ). "The decision to impose sanctions for the spoliation of evidence is within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion" (Bruno v Peak Resorts, Inc. [supra ], quoting State of New York v 158th St. & Riverside Dr. Hous. Co., Inc. , 100 AD3d 1293, 1295 [3d Dept 2012] [citations omitted], lv denied 20 NY3d 858 [2013] ; see Ortega v City of New York , 9 NY3d 69, 76 [2007] ).
Here, Defendant concedes that the wooden shelf was not properly attached to the locker at the time of the incident (Krenrich Affirmation, ¶ 45; see ¶ 42). In addition, Defendant concedes that the shelf was destroyed and that its size, weight, length, and width are unknown. Defendant also avers that Claimant was provided two photographs of a similar shelf (id. , ¶ 44; State's Ex. L, ¶ 8; Ex. KK). Claimant, however, asserts that he cannot determine the size, length, weight, and width of the shelf based upon the photographs, and, thus, the force exerted by the shelf when it struck Claimant in the head and neck cannot be determined (Rubenstein Reply Affirmation, ¶¶ 44-46). Claimant makes a similar argument regarding the locker (id. , ¶¶ 50-52) which Defendant concedes, was not preserved or identified, and there are no documents setting forth its dimensions or weight (see State's Ex. L, ¶ 6).
Thus, it appears to the Court that Defendant is not contesting the fact that the shelf was not properly attached to the locker, or that the shelf struck Claimant in the head and neck. The issue regarding the force of the object that struck Claimant is an issue of the degree of Claimant's injury and relates to damages, not the issue of Defendant's liability, which must be decided first. Further, it appears to the Court that Claimant and medical professionals for Claimant and Defendant can discuss the severity of Claimant's injuries. The exhibits indicate that Claimant sustained a concussion (see Claimant's Exs. L & M). The same analysis applies to the locker in cell B1-6.
As stated above, the destroyed cell inventory sheets, grievances, and work orders appear to relate to the issue of Defendant's notice regarding the condition of the wooden shelf. Defendant's assertion that the loss of the work orders is equally prejudicial to both parties because neither can use them to support their respective positions (Krenrich Affirmation, ¶ 54) is rejected by the Court, as it is Claimant, not Defendant, who has the burden of proof on the issue.
The Court finds that Claimant's ability to prove his Claim has been prejudiced by the spoliation of the evidence discussed above. Courts are reluctant to strike the Answer in the absence of "a willful or contumacious failure to facilitate discovery" ( Puccia v Farley , 261 AD2d 83, 85 [3d Dept 1999] ; see Weiss v Bellevue Maternity Hosp. , supra ) and, accordingly, the Court finds that the ultimate sanction of striking the Answer is not warranted on these facts. However, a sanction is required for Defendant's failure to preserve what could have been vital evidence in the case. Thus, Defendant is hereby precluded from offering at trial any evidence, testimonial or documentary, as to the condition of the wooden shelf or locker prior to Claimant's accident, nor may the State offer any expert testimony regarding the shelf or locker to refute Claimant's proof. In addition, Defendant may not offer any evidence, testimonial or documentary, regarding lack of notice of the condition of the shelf or locker based upon its failure to retain the cell inventory sheets, prior grievances, and work orders, for cell B1-6. Further, the Court finds that Claimant is entitled to an adverse inference against Defendant on the issue of notice at trial that the destroyed cell inventory sheets, prior grievances, and work orders would not have supported Defendant's position on the issue of notice and would not have contradicted the evidence offered by Claimant, and that the strongest inference will be drawn against Defendant on the issue of notice (see PJI 1:77.3; Flores v State of New York , UID No. 2016-049-102 [Ct Cl, Weinstein, J., Nov. 10, 2016]). Claimant is not relieved of his burden of establishing the existence of a defect and causal relationship between the defect and the accident.
The following papers were read and considered by the Court on Claimant's motion to strike the Answer based upon spoliation of evidence:
Papers Numbered
Notice of Motion, Affirmation in Support, & Exhibits Attached 1
Affirmation in Opposition & Exhibits Attached 2
Reply Affirmation & Exhibits Attached 3
Filed papers: Claim, Answer