Opinion
No. 101981/07.
06-30-2014
VERIZON NEW YORK, INC., Plaintiff v. CONSOLIDATED EDISON, INC. and Consolidated Edison of New York, Inc., Defendants.
David E. Hoffberg, Esq., Pillinger Miller Tarallo, LLP, Elmsford, for Plaintiff. William F. Tietjen, Esq., Consolidated Edison Co. of New York, Inc., New York, for Defendant.
David E. Hoffberg, Esq., Pillinger Miller Tarallo, LLP, Elmsford, for Plaintiff.
William F. Tietjen, Esq., Consolidated Edison Co. of New York, Inc., New York, for Defendant.
Opinion
NANCY M. BANNON, J.
The plaintiff, Verizon New York, Inc. (“Verizon”), alleges in its complaint that on March 8, 2004, one of its underground telecommunications cables located at the corner of West 26th Street and Sixth Avenue in Manhattan was destroyed by a fire or “burnout” caused by the negligence of the defendants, Consolidated Edison, Inc. and Consolidated Edison of New York, Inc. (“Con Edison”). Con Edison denies responsibility and asserts in its defense that any damage to the cable was caused in whole or part by the plaintiff's own negligence, and by none of its own. The damaged cable, which was made of copper and installed in 1930, was salvaged by the plaintiff for scrap metal soon after the incident. The defendants now move to dismiss the complaint pursuant to CPLR 3212 based upon this spoliation of evidence and pursuant to CPLR 3126 based upon the plaintiff's failure to comply with numerous discovery demands and court orders. For the reasons stated below, the motion is granted.
“Spoliation is the destruction of evidence.” Kirkland v. New York City Housing Authority, 236 A.D.2d 170, 173, 666 N.Y.S.2d 609 (1st Dept.1997). “Under New York law, spoliation sanctions are appropriate where a litigant, intentionally or negligently, disposes of crucial items of evidence involved in an accident before the adversary has an opportunity to inspect them” (Id. ) and after being placed on notice that such evidence might be needed for future litigation. See New York City Housing Auth.v Pro Quest Security, Inc., 108 A.D.3d 471, 970 N.Y.S.2d 21 (1st Dept.2013) ; Sloane v. Costco Wholesale Corp., 49 A.D.3d 522, 855 N.Y.S.2d 155 (2nd Dept.2008). The Supreme Court has “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 ... or employing an adverse inference instruction at the trial of the action.” Ortega v. City of New York, 9 N.Y.3d 69, 76, 845 N.Y.S.2d 773, 876 N.E.2d 1189 (2007) ; see CPLR 3126 ; Voom HD Holdings LLC v. Echostar Satellite LLC, 93 A.D.3d 33, 939 N.Y.S.2d 321 (1st Dept.2012) ; General Security Ins. Co. v. Nir, 50 A.D.3d 489, 858 N.Y.S.2d 18 (1st Dept.2008).
However, the sanction of dismissal of the complaint or answer is warranted where the alleged spoliation prevents the movant from inspecting a key piece of evidence which is crucial to the movant's case or defense (see Kirkland v. New York City Housing Authority, supra; Mudge, Rose, Guthrie, Alexander & Ferdon v. Penguin Air Conditioning, Inc., 221 A.D.2d 243, 633 N.Y.S.2d 493 [1st Dept.1995] ; Bach v. City of New York, 33 A.D.3d 544, 827 N.Y.S.2d 2 [1st Dept.2006] ) or has left the movant “prejudicially bereft' of the means of presenting their claim.” Kirkland v. New York City Housing Authority, supra at 174, 666 N.Y.S.2d 609,quoting Hoenig, Pruducts Liability, Impeachment Exception: Spoliation Update, NYLJ, Apr. 12, 1993, at 6, col 5); see Canaan v. Costco Wholesale Membership, Inc., 49 A.D.3d 583, 854 N.Y.S.2d 442 (2nd Dept.2008) ; New York Central Mutual Fire Ins. Co. v. Turnerson's Elec., 280 A.D.2d 652, 721 N.Y.S.2d 92 (2nd Dept.2001) ; Cohen Brothers Realty v. Rosenberg Elec. Contr., 265 A.D.2d 242, 697 N.Y.S.2d 20 (1st Dept.1999) ; see generally Ortega v. City of New York, supra; MetLife Auto & Home v. Joe Basil Chevrolet, 1 N.Y.3d 478, 775 N.Y.S.2d 754, 807 N.E.2d 865 (2004). That is the case here.
The proof before the court on this motion, including depositions of an employee of each party, shows that the plaintiff called the defendants to the location of the cable failure reporting a stray voltage problem but, after testing, the defendants found no stray voltage nor any sign of a fire or “burnout” damage caused by their equipment. Richard Chintalin, a Con Edison employee, testified that he responded to the location the morning after the incident upon receiving Verizon's report. The report did mention any fire and, indeed, the plaintiff does not dispute that no fire was reported to the New York Fire City Department. Using a volt meter, Chintalin tested all three manholes at that intersection, two belonging to Con Edison and one to Verizon, for stray voltage and found none. He went into Verizon's manhole but did not recall observing any damage to a Verizon cable or other facilities at that time. Nor could he identify photographs shown to him by the plaintiff's counsel at the deposition, purportedly of the damaged cable. Based on his findings, Chintalin deemed the site to be safe and reported this to the Verizon employees present, which included Dennis Hogan, who then went back into the manhole to work. Chintalin did not create any record of the testing since that is done only with a positive finding. Hogan's testimony mostly parallels that of Chintalin as to these events.
Thereafter, as described by Hogan at his deposition, the subject cable was simply “put in a scrap heap” by the time the repair work at the manhole was completed on March 31, 2004, and no testing of the cable was performed to determine what had occurred. The defendants were alerted to the destruction of the cable after being served with the summons and complaint.
As noted above, the defense theory is that the cable failed due to its age and condition, or some reason other than stray voltage and that a physical inspection of the cable could reveal the true cause. In an affidavit submitted by the defendants, James Freer, who had worked for Verizon for 30 years repairing and replacing damaged underground equipment, explained that a cable which fails due to a “burnout” looks different from a cable which fails due to electrolysis, age or some other cause. According to Freer, without an inspection, a determination cannot be made as to how and why the subject cable failed. In disposing of the cable as scrap metal, the plaintiff destroyed not just a key or “crucial item of evidence” (Kirkland v. New York City Housing Authority, supra at 173, 666 N.Y.S.2d 609) but the singular most important piece of evidence in this action. Even if the plaintiff believes it could meet its own burden of proof without the cable, the court must look to the impact on the defense. The plaintiff's intentional disposal of the cable along with, as discussed more fully below, its failure to provide related discovery, has left the defendants “prejudicially bereft” of the means of presenting their defense.
The plaintiff's claim that, in addition to Freer's affidavit, the defendants were required to support their motion with a further affidavit or report of an expert stating that a physical inspection of the cable was necessary to the defense, is unsupported by any statutory or decisional authority. In any event, no expert opinion is necessary since logic dictates that, in an action to recover money damages based upon damage to a telephone cable, the cable is the central piece of physical evidence, which the defendant has a right to inspect. See Verizon New York, Inc. v. Consolidated Edison Co. of New York, Inc., 54 A.D.3d 599, 864 N.Y.S.2d 4 (1st Dept.2008).That the cable was discarded prior to the commencement of the litigation does not support the plaintiff's position. See Kirkland v. New York City Housing Authority, supra. “For a spoliation sanction to be applicable, there need only be the reasonable anticipation of litigation' (Voom HD Holdings LLC v. Echostar Satellite LLC, 93 A.D.3d 33, 43, 939 N.Y.S.2d 321 [1st Dept.2012] ).” New York City Housing Auth.v Pro Quest Security, Inc., supra at 23–24. In Voom HD Holdings LLC. the First Department explained that “[t]he reasonable anticipation of litigation,' as discussed by [Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y.2003) ] and its progeny, is a time when a party is on notice of a credible probability that it will become involved in litigation.” Here, that time occurred on March 8, 2004, when the cable failed, the plaintiff notified the defendants claiming that they had caused the failure, and the defendants denied any responsibility. As such, the plaintiff cannot reasonably argue that it was unaware that the cable might be needed for future litigation.
Indeed, given the nature of their respective businesses, the plaintiff and defendant are often adversaries in similar actions. In a case involving these parties and a claim of spoliation of damaged cables, the First Department held that “we are satisfied that the unavailability of the cables substantially hinders' defendant's ability to prove that the damage was caused by electrolysis (see Cohen Bros. Realty v. Rosenberg Elec. Contrs., 265 A.D.2d 242, 244, 697 N.Y.S.2d 20). ” Verizon New York, Inc. v. Consolidated Edison Co. of New York, Inc., supra at 600, 864 N.Y.S.2d 4 (1st Dept.2008). The court did not dismiss the complaint in that case since the cables were not discarded but left underground and, noting Verizon's “failure to preserve for inspection even a portion of the damaged cables”, directed it to pay the cost of excavating them. By putting the cable that is the subject of this action into a scrap heap years ago, prior to the commencement of the action, the plaintiff has eliminated the possibility of that remedy here.
In Malouf v. Equinox Holdings, Inc., 113 A.D.3d 422, 978 N.Y.S.2d 160 (1st Dept.2014), the Court upheld the striking of a third-party complaint based on spoliation where the defendant/third-party plaintiff health club operator failed to preserve the treadmill upon which the plaintiff claimed to have been injured. The Court found the sanction warranted since the discarded treadmill was a “key piece of evidence that is not available for inspection.” Id. at 422, 978 N.Y.S.2d 160. Dismissal of a third-party complaint was also found warranted where the destruction of an allegedly defective street sweeper prevented the manufacturer from countering a design defect claim (Squitieri v. City of New York, 248 A.D.2d 201, 669 N.Y.S.2d 589 [1st Dept.1998] ) and where the defendant/third-party plaintiff's employees removed the subject stove from plaintiff's apartment and failed to preserve it. See Kirkland v. New York City Housing Authority, supra. Compare Russo v. BMW of North America, LLC, 82 A.D.3d 643, 920 N.Y.S.2d 64 (1st Dept.2011) [defendant inspected subject vehicle prior to spoliation].
This is not a case where a lesser sanction would suffice. Those are appropriate only “where the evidence lost is not central to the case or its destruction is not prejudicial.” Foncette v. LA Express, 295 A.D.2d 471, 472, 744 N.Y.S.2d 429 (2nd Dept.2002). For example, in Foncette, the defendants lost the subject hydraulic jack after giving it to their liability insurer for inspection, who then became insolvent. The court declined to strike their answer since the loss was not the result of a wilful act by the defendants and the plaintiffs failed to offer any proof that the jack was essential to their case or that they were unduly prejudiced by its absence. Similarly, in New York City Housing Auth. v. Pro Quest Security, Inc., supra, the destruction of a videotape was found to warrant the sanction of preclusion since the recording was of an area other than the cafeteria where the subject fire began, and the defendant security company could depose eyewitnesses present in the building at the time of the fire. See also General Motors Acceptance Corp. v. New York Central Mutual Fire Ins. Co., 104 A.D.3d 523, 961 N.Y.S.2d 142 (1st Dept.2013) [destruction of transcript of audiotape of parties' claims meeting warrants adverse inference charge]; Suazo v. Linden Plaza Assocs., L.P., 102 A.D.3d 570, 958 N.Y.S.2d 389 (1st Dept.2013) [adverse inference charge appropriate for failure to preserve surveillance tape where witnesses who viewed tape prior to its destruction testified].
The plaintiff's argument that the defendants here were not prejudiced and could nonetheless present a defense based upon photographs provided by the plaintiff and records or reports concerning the incident is disingenuous. First, the four black and white photographs, which are annexed to the opposition papers, are undecipherable and, since the defendant's witness, Richard Chintalin, was unable to identify them at his 2009 deposition as being the subject cable, he is not likely to identify them at a trial. Secondly, the documents apparently referenced by the plaintiff were not all turned over to the defendants, notwithstanding some twelve court orders, all of which are annexed to the motion papers. The defendants sought, and the court ordered disclosed, a number of reports and records concerning the condition of the cable and any area service interruptions or complaints, which were clearly relevant to its defense. Specifically, the plaintiff's “V–Repair Report”, which, according to Freer, “would have provided definitive information as to the origin and extent of the cable failure” was never produced. The last two court orders, dated September 9, 2013, and November 12, 2013, expressly stated that the plaintiff would be afforded no further extensions.
In this regard, the defendants move to dismiss the complaint on the further ground of failure to provide discovery pursuant to CPLR 3126. That statute authorizes the court to sanction a party who “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed.” Wilful or contumacious failure to comply with discovery, especially court-ordered discovery, unduly delays the action and subjects the recalcitrant party to all of the penalties provided in CPLR 3126. See Palmenta v. Columbia Univ., 266 A.D.2d 90, 698 N.Y.S.2d 657 (1st Dept.1999) ; Kutner v. Feiden, Dweck & Sladkus, 223 A.D.2d 488, 637 N.Y.S.2d 15 (1st Dept.1996)lv denied 88 N.Y.2d 802, 644 N.Y.S.2d 689, 667 N.E.2d 339 (1998). Further, the court may infer wilfulness from a history of noncompliance (General Motors Acceptance Corp. v. New York Central Mutual Fire Ins. Co., supra ) or repeated failures to comply with court orders or discovery demands without a reasonable excuse. See LaSalle Talman Bank, F.S.B. v. Weisblum & Felice, 99 A.D.3d 543, 951 N.Y.S.2d 871 (1st Dept.2012) ; Perez v. City of New York, 95 A.D.3d 675, 944 N.Y.S.2d 553 (1st Dept.2012) ; Figiel v. Met Food, 48 A.D.3d 330, 851 N.Y.S.2d 524 (1st Dept.2008) ; Ciao Europa, Inc. v. Silver Autumn Hotel Corp., Ltd., 270 A.D.2d 2, 704 N.Y.S.2d 809 (1st Dept.2000).Here, the plaintiff's failure to comply with numerous demands and twelve court orders unduly delayed the case and constitutes “precisely the sort of dilatory and obstructive, and thus contumacious, conduct” (Kutner v. Feiden, Dweck & Sladkus, supra at 489, 637 N.Y.S.2d 15) warranting an order striking the complaint pursuant to CPLR 3126(3). See CDR Creances S.A.S. v. Cohen, 104 A.D.3d 17, 957 N.Y.S.2d 75 (1st Dept.2012) ; Figdor v. City of New York, 33 A.D.3d 560, 823 N.Y.S.2d 385 (1st Dept.2006) ; Reidel v. Ryder TRS, Inc., 13 A.D.3d 170, 786 N.Y.S.2d 487 (1st Dept.2004). The court orders issued in this case spanned more than two years, the most recent being dated nearly seven years after the action was commenced and approximately ten years after the plaintiff had discarded the key piece of evidence. Indeed, wilfulness has been implied and a dismissal sanction imposed upon much less. See e.g Harris v. City of New York, 117 A.D.3d 790, 985 N.Y.S.2d 711 (2nd Dept.2014) [several court orders over one year and five months]; General Motors Acceptance Corp. v. New York Central Mutual Fire Ins. Co., supra [two court orders]; LaSalle Talman Bank, F.S.B. v. Weisblum & Felice, supra [two court orders]. By failing to oppose this portion of the defendants's motion, the plaintiff presents no argument to the contrary.
Accordingly, it is hereby,
ORDERED that the defendants' motion to dismiss the complaint is granted and the complaint is dismissed in its entirety, and it is further,
ORDERED that the Clerk shall enter judgment dismissing the complaint in its entirety.
This constitutes the Decision and Order of the Court.