Opinion
50816/01.
Decided August 16, 2005.
Hershel Kulefsky, New York, NY, for the plaintiffs.
Bruce A. Lawrence, Brooklyn, New York, for defendant.
Hoey, King, Toker Epstein, New York, NY, for defendant.
Corporation Counsel, New York, NY, for defendant City of New York.
Plaintiffs Michael Yechieli and Rachel Yechieli (plaintiffs) move for an order, pursuant to CPLR 3126, striking the answer of the defendant City of New York (the City) or resolving the issue of liability in favor of the plaintiffs based upon the City's alleged destruction and spoliation of key evidence, and its failure to respond and produce discovery pursuant to prior orders of this court.Plaintiffs also cross-move for an order, pursuant to CPLR 3212, granting summary judgment against the City and resolving the issue of liability in their favor against the City and defendant Allboro Piping Corp. (Allboro).Allboro cross-moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiffs' complaint as well as all cross claims asserted against it.
Factual Background
This negligence action arises out of an incident which occurred on January 1, 1999, when the plaintiff Michael Yechieli (plaintiff) sustained injuries when he slipped and fell on a patch of ice on the roadway in front of 1320 58th Street, between 13th Avenue and New Utrecht Avenue in Brooklyn, New York. Allboro is the plumbing contractor, who was hired by defendant American Building to connect water and sewer lines from new home construction to the City's water and sewer system. Approximately 2½ months before the plaintiff's accident, Allboro obtained a permit from the City to hook up new water service to the City's water main. As part of this process, Allboro excavated the subject roadway (in front of 1320 58th Street) to expose the water main, at which point, the City of New York Department of Environmental Protection (DEP) installed a "tap," also known as a "corporation cock." A tap is a valve which is installed in the water main to open or close the water for each individual building. After the tap was installed by DEP, Allboro re-excavated the area, hooked its piping up to the tap, and filled in/patched the subject roadway area. Sometime after the work was done, water began leaking up to the roadway surface, forming a puddle.
On February 5, 1999, plaintiffs filed a notice of claim with the City alleging that the ice patch on which he slipped was caused by "water leaking up from broken pipes and/or water mains beneath the roadway." On May 17, 1999, plaintiff appeared for a 50-h hearing conducted by the City. During this hearing, the plaintiff testified that the accident occurred as he was crossing 58th Street to go to his car. As he did so, he was caused to slip on a patch of ice thereby fracturing his left leg. Plaintiff further testified that, at the time of the accident, there was no other ice or water anywhere else on the roadway.
On May 19, 1999, the City served a 3-day notice to the owner of the premises at 1320 58th Street, directing the owner to fix the leaking condition. On May 25, 1999, Allboro obtained a new excavation permit from the City to re-excavate the area. Earl Knight, an Allboro employee, appeared for a deposition on behalf of Allboro. Knight testified that Allboro inspected the tap and found it to be leaking water, which was running down towards the sidewalk. Allboro then contacted DEP on May 27, 1999 to remedy the problem. At first, DEP tried to pack the tap with steel wool in order to stop the leak. However, when this failed to stop the leak, DEP replaced the tap.
In March 2000, plaintiffs commenced the within personal injury action against various defendants including, inter alia, the City and Allboro alleging negligence. Specifically, plaintiffs alleged that the patch of ice was formed by water which had leaked up through the ground surface from a defective water main above the location where the City had installed the tap.
Discussion Plaintiffs' Motion to Strike the City's Answer
Plaintiffs now move for an order, pursuant to CPLR 3126, striking the City's answer or, in the alternative, resolving the issue of liability against the City and in plaintiffs' favor based upon the City's alleged destruction and spoliation of evidence (the subject tap). Plaintiffs also argue that sanctions should be imposed against the City because of its failure to produce a witness with personal knowledge of the tap and repairs regarding same as directed by a prior order of this court. In support of their motion, plaintiffs contend that the City replaced the allegedly defective tap and discarded it although it was foreseeable that it would be crucial evidence in future litigation. Despite the notice of claim having been served on February 5, 1999, and plaintiff's 50-h hearing having been conducted on May 17, 1999, the City still disposed of the subject tap rather than taking steps to preserve same. By destroying the tap, the plaintiffs argue that they have been deprived of the single most important piece of evidence in determining the cause of the leak (i.e., whether it was installed improperly by the City or damaged by Allboro). Plaintiffs therefore argue that the City's disposal of the tap has fatally prejudiced their case against the City leaving them with no way of proving the City's negligence with respect to the accident.
In opposition, the City has submitted an affidavit of its employee, Milton Velez, averring that DEP removed the two-inch tap from beneath the roadway and immediately disposed of it on May 27, 1999. The City contends that the tap was disposed of pursuant to the DEP's routine custom and practice while responding to the condition on the roadway, and notes that there was no discovery request for the tap or an order requiring the City to preserve or produce same prior to its disposal. Thus, the City argues that the plaintiffs cannot establish that its disposal of the tap was in bad faith or otherwise intended to frustrate discovery. The City further argues that the tap is not crucial to plaintiffs proving their case. Based upon the forgoing, the City maintains that the extreme sanction of striking its answer is not warranted here.
"It is well settled that when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading" ( Baglio v St. John's Queens Hosp., 303 AD2d 341, 342; New York Cent. Mut. Fire Ins. Co. v Turnerson's Elec., 280 AD2d 652, 653, quoting DiDomenico v C S Aeromatik Supplies, 252 AD2d 41, 53). Furthermore, "[a] pleading may be stricken even if the evidence was destroyed before the spoliator became a party, provided it was on notice that the evidence might be needed for future litigation'" ( Baglio, 303 AD2d at 342, quoting DiDomenico, 252 AD2d at 53). Thus, striking a pleading is an extreme sanction and unless the party that lost or destroyed the evidence acted willfully, contumaciously, or in bad faith, a lesser sanction is usually appropriate although "courts will consider the extent of prejudice to a [non-responsible] party and whether dismissal is necessary as a matter of elemental fairness'" ( Favish v Tepler, 294 AD2d 396, 397, quoting Puccia v Farley, 261 AD2d 83, 85). Moreover, whenever possible, actions should be resolved on the merits ( see Mohammed v 919 Park Place Owners Corp., 245 AD2d 351; Cruzatti v St. Mary's Hosp., 193 AD2d 579).
Here, there is no evidence that the City intentionally disposed of the subject tap to frustrate discovery or otherwise acted in bad faith. Rather, the tap appears to have been discarded in accordance with routine DEP practices. However, the City clearly had knowledge of a potential lawsuit concerning the allegedly leaking/defective tap prior to its disposal. The notice of claim, filed by plaintiffs on February 5, 1999, specifically alleged that water was leaking up from broken pipes and/or water mains beneath the roadway where the accident occurred. Additionally, during his 50-h hearing, which was conducted on May 17, 1999, just 10 days before the City attempted to repair and ultimately disposed of the tap, the plaintiff specifically testified that the area where the accident occurred was "still broken" because water was still present in that location. Thus, the City's duty to preserve the tap arose as early as February 5, 1999.
However, while the tap is clearly relevant, the court is not convinced that its absence will prevent plaintiffs from making a case against the City. A review of the record reveals deposition testimony indicating that the subject tap was installed by the City over two months before plaintiff's accident, that it was leaking water at the threads up to the roadway, and that, approximately five months after the accident, the City had to replace the tap because it was unable to stop it from leaking. Additionally, there are City/DEP work records which indicate the leaking condition of the tap and the City's failed attempts to repair it. Under these circumstances, the extreme sanction of striking the City's answer is not warranted in this case. Instead, this court is of the view that a less severe sanction of a negative inference charge is more appropriate ( see Marro v St. Vincent's Hosp., 294 AD2d 341).
Additionally, the plaintiffs seek sanctions based upon the City's failure to produce a knowledgeable deposition witness. By order dated June 14, 2004, this court directed the City to produce, inter alia, a deposition witness with knowledge of the tap or repairs at issue. Plaintiffs contend that the City violated this June 14th order by producing a "records witness" who had no personal knowledge of the subject tap or repairs made to same. Nor did the witness have any familiarity with many of the records/documents that had been produced by the City.
Contrary to the City's contention, the court finds that the plaintiffs have demonstrated that the deposition witness produced by the City (Robert West) on August 17, 2004, a DEP employee, did not possess the necessary personal knowledge of the tap at issue or repairs made to same as required by this court's June 14, 2004 order. During his deposition, Mr. West testified that he was not personally familiar with the subject water leak or accident location, and that he did not even work in the same maintenance yard (which investigates various water main leaks including the one at issue) until December 2001, approximately two years after plaintiff's accident occurred. Additionally, a review of Mr. West's deposition testimony reveals that he was not familiar with several of the documents previously produced by the City related to the subject tap and accident location. More importantly, Mr. West's testimony revealed that the inspector who actually examined the leak/tap at issue, Inspector Villella, is still employed by the City (DEP). Based upon the foregoing, the court finds that the City has failed to produce a deposition witness "with knowledge of the tap' or repairs at issue" in violation of this court's June 14, 2004 order. Accordingly, the City is hereby directed to produce for a deposition its employee, Inspector Villella, whom plaintiffs claim has personal knowledge of the subject tap, or another person with similar knowledge of same( see Graves v Merco Properties, Inc., 199 AD2d 240, 241; Silk v City of New York, 142 AD2d 724).
Cross Motions for Summary Judgment
Plaintiffs also seek summary judgment as to liability on their claims against both the City and Allboro. In support of their cross motion, the plaintiffs contend that the record evidence establishes that the City, the party responsible for the leaking tap, and Allboro, the plumbing contractor who excavated the area and worked on the pipes at the accident location, are jointly responsible for plaintiff's injuries.
It is well settled that a party seeking summary judgment pursuant to CPLR 3212 has the burden of establishing entitlement to judgment as a matter of law by coming forward with evidentiary proof, in admissible form, demonstrating the absence of any disputed material facts ( see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562; CPLR 3212[b]).
Here, while the evidence in the record appears to indicate that the City's tap was defective and was the source of the water leak, at this point, the court is unable to determine as a matter of law whether the City's actions were solely the cause of the plaintiff's accident, or whether Allboro in any way contributed to the plaintiff's injuries. A review of the record reveals that Allboro's work involved excavating the subject area and attaching a gooseneck to the City's tap. Specifically, an issue of fact has been raised as to whether Allboro negligently attached the gooseneck to the tap, thereby damaging same, and whether it (Allboro) negligently resurfaced/patched the subject roadway following its excavation, thereby causing water and ice to accumulate in that location. In this regard, plaintiffs point out that when the tap was originally placed, Allboro backfilled the area and resurfaced the roadway using a temporary "cold patch", and never replaced it with a permanent repair using hot asphalt. Plaintiffs contend that by the time of plaintiff's accident, the area had sunk and collapsed, thereby allowing the water from the leaking tap below to come through to the surface and collect in said area. In light of the issue of fact as to whether Allboro was wholly or partly responsible for plaintiff's accident, plaintiffs' cross motion seeking summary judgment on the issue of liability as against either the City or Allboro is denied. Indeed, summary judgment should not be granted where there is any doubt as to the existence of a triable issue or where the existence of an issue is arguable ( see American Home Assurance Co., v Amerford International Corp, 200 AD2d 610). Based upon the foregoing, Allboro's cross motion for summary judgment dismissing plaintiffs' complaint and all claims insofar as asserted against it is also denied.
Aside from the negative inference charge with respect to the missing tap, the City's own records indicate that the DEP inspected the subject area of the accident on May 27, 1999, and found the source of the water leak to be at the threads of the City's tap. In particular, the comment portion of a DEP work document, dated May 27, 1999, stated that the worker found "a Very sl/lk [slow leak] coming from main-right near threads of 2" tap" at the accident location. Additionally, in another DEP record, a comment is noted that, on May 27, 1999, workers who arrived on location found the water main "leaking with defective 2" tap".
Conclusion
In summary, plaintiffs' motion for an order striking the City's answer based upon its spoliation of key evidence and its failure to produce a knowledgeable deposition witness is granted only to the extent that a negative inference charge shall be given with respect to the missing tap at trial, and the City is hereby directed to produce for a deposition its employee, Inspector Villella, or another person with personal knowledge of the subject tap and repairs at issue. Plaintiffs' cross motion seeking summary judgment as to liability against the City and Allboro is denied. Allboro's cross motion seeking summary judgment dismissing plaintiffs' complaint as well as all claims insofar as asserted against it is also denied.
The foregoing constitutes the decision and order of the court.