Opinion
Index 161951/2018
04-11-2022
MARCUS MASSIAH Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Defendant.
Unpublished Opinion
PRESENT: HON. WILLIAM PERRY Justice
DECISION + ORDER ON MOTION
William Perry Judge
The following e-filed documents, listed by NYSCEF document number (Motion 002) 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 were read on this motion to/for STRIKE PLEADINGS.
In this personal injury action, plaintiff seeks an order striking defendant's answer pursuant to CPLR §3126, claiming that defendant willfully destroyed evidence necessary to the prosecution of this action, or in the alternative, seeking an order granting the plaintiff a spoliation charge at trial due to the defendants alleged willful and/or negligent spoliation of evidence.
A party seeking sanctions for spoliation "must establish that the non-moving party had an obligation to preserve the item in question, that the item was destroyed with a culpable state of mind, and that the destroyed item was relevant to the party's claim or defense" (Gilliam v. Uni Holdings, 201 A.D.3d 83, 159 N.Y.S.3d 401, [1st Dept. 2021] [citing, Rossi v Doka USA, Ltd., 181 A.D.3d 523, 525, 121 N.Y.S.3d 41 [1st Dept 2020] [internal quotation marks omitted]; see also, VOOMHD Holdings LLC v EchoStar Satellite LLC, 93 A.D.3d 33, 45, 939 N.Y.S.2d 321 [1st Dept 2012]).
A party can be deemed to have had a "culpable state of mind" for purposes of a spoliation sanction even if it engaged in no more than ordinary negligence (VOOMHD Holdings LLC v EchoStar Satellite LLC, 93 A.D.3d at 45). However, "striking a pleading is usually not warranted unless the evidence is crucial and the spoliator's conduct evinces some higher degree of culpability" (Russo v BMW of North America, LLC, 82 A.D.3d 643, 920 N.Y.S.2d 64 [1st Dept 2011]). When that drastic remedy is appropriate in the case of ordinary negligence, it is because the non-spoliating party carried its burden of establishing that the missing evidence was its "sole means" of defending the claim, its defense was otherwise "fatally compromised" by the spoliation, or it had become "prejudicially bereft" of being able to defend (Arbor Realty Funding, LLC v Herrick, Feinstein LLP, 140 A.D.3d 607, 609-610, 36 N.Y.S.3d 2 [1st Dept 2016]).
Supreme Court has broad discretion to determine a sanction for spoliation of evidence (Pegasus Aviation I, Inc. v Varig Logistics S.A., 26 N.Y.3d 543, 551 [2015]).
Here, plaintiff has not carried his burden to obtain the drastic sanction of striking defendant's answer, nor does the record reflect circumstances at this stage of the litigation which warrant the alternative relief requested of a spoliation charge at trial. The parties exchanged various discovery demands and responses, including photographs, related to the handle that plaintiff claims caused him to sustain personal injuries while walking past the garbage chute in the building.
On May 29, 2019, defendant served its Response to Plaintiffs Notice to Produce. In its Response, defendant attached various photographs of the trash chute and handle; the photographs contained measurements and descriptions of the handle. (NYSCEF Doc. No. 42). On February 12, 2020, defendant responded to plaintiffs 2nd Notice to Produce requesting whether the handle was still at the subject location, as follows: "The original handle/knob in question is still affixed to the garbage disposal chute on the 10th floor of the premises in question. The handle has not been changed, according to the testimony of the Supervisor of Caretakers, Alexander Rodriguez. Said testimony was given under oath at his deposition on February 12, 2020. Defendant reserves the right to supplement or amend this response up to and including the time of trial." (NYSCEF Doc. No. 42).
In opposition to plaintiffs motion, defendant submits the affidavit of the building's superintendent which provides: "The replacement of the garbage chute hoppers and their handles was completed at 45 Rutgers Street on November 3, 2020. That work was performed by Metro City Renovation, Inc., and the replaced hoppers were removed by Metro City and are no longer available." (NYSCEF Doc. No. 49).
Plaintiff has not demonstrated that the missing evidence was his "sole means" of litigating the claim, nor has he shown that sustaining his negligence claim is otherwise "fatally compromised" by the spoliation. In addition, plaintiff did not serve a litigation hold or request upon defendant at any time during discovery to preserve the garbage chute handle. The record reflects that the parties exchanged several photographs and detailed measurements of the handle which have been shared and reviewed by the parties' respective experts.
Defendant maintains that no expert on its behalf has ever physically examined the handle in question, and that both parties and their counsel, or investigators, examined the handle, took multiple photographs of same and exchanged those photographs. (NYSCEF Doc. No. 45, ¶¶10, 11). Defendant posits that the facts demonstrate that the garbage chute and handle were not negligently, or willfully destroyed to gain a strategic advantage, but rather all the garbage disposal chutes in the entire development were replaced as part of a general rehabilitation, as set forth in the Sanchez affidavit (see NYSCEF Doc. No. 49). Thus, it maintains that plaintiff cannot demonstrate prejudice sufficient to warrant the severe sanction of striking its answer. (see, Gutierrez v Reiser, 159 A.D.3d 592, 74N.Y.S.3d 186 [1st Dept 2018] [denying motion for spoliation sanctions finding that the parties' deposition testimony, photographs taken by plaintiff and defendant at the accident scene of the damage to their vehicles, and the police report from both accidents are sufficient substitutes for inspection of the vehicle]).
There is no basis for spoliation sanctions on this record. Plaintiff failed to prove that defendants willfully or negligently disposed of the handle with the knowledge that it should be preserved. Accordingly, plaintiffs motion seeking spoliation sanctions is denied, and it is
ORDERED that plaintiffs motion sequence 001, seeking to strike defendant's answer is denied in its entirety.