Loading ...
Sorry, an error occurred while loading the content.

The Rogak Report: 31 Jan 2007 ** Spoliation of Evidence **

Expand Messages
  • Lawrence Rogak
    PLAINTIFF S LOSS OF MOTORCYCLE HELMET RESULTS IN STRIKING ALL CLAIMS FOR HEAD INJURIES Scarano v. Bribitzer, 2007 NY Slip Op 50147(U) (Supreme Court, Richmond
    Message 1 of 1 , Jan 31, 2007
    • 0 Attachment
      PLAINTIFF'S LOSS OF MOTORCYCLE HELMET RESULTS IN STRIKING ALL CLAIMS
      FOR HEAD INJURIES

      Scarano v. Bribitzer, 2007 NY Slip Op 50147(U) (Supreme Court,
      Richmond County) (McMAHON, J.)

      On October 17, 2004, the plaintiff allegedly sustained injuries when
      a motor vehicle operated by defendant Glen Bribitzer and owned by
      Mercedes Benz Credit Corporation collided with his motorcycle at the
      intersection of Annadale Road and Pine Terrace, Staten Island, New
      York. In August, 2004, the plaintiff commenced this action and issue
      was joined by service of an answer by the defendants. In his Bill of
      Particulars, the plaintiff set forth the following injuries:
      fractured skull and nose; lacerated cornea, complete tear of the PCL
      of the right knee; partial tear of the ACL of the right knee; and
      injuries to his cervical spine. After the completion of discovery,
      the defendants moved to dismiss the complaint pursuant to CPLR 3126
      based on the plaintiff's loss of the motorcycle helmet and shield
      that he was wearing during the accident.

      The Court held, "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 [2d Dept. 2003]; DiDomenico v. C &
      S Aeromatik Supplies, 252 AD2d 41 [2d Dept. 1998]). Spoliation
      sanctions are not limited to cases where the evidence was destroyed
      willfully or in bad faith, since a party's negligent loss of evidence
      can be just as fatal to another's party's ability to present a case
      or a defense. (Madison Ave. Caviarteria v. Hartford Steam Boiler
      Inspection, 2 AD3d 793 [2d Dept. 2003]; DiDomenico v. C & S Aeromatik
      Supplies, 252 AD2d 41 [2d Dept. 1998]). Although courts are reluctant
      to dismiss a pleading absent willful or contumacious conduct, it may
      be warranted as a matter of elementary fairness (Lawson v. Aspen
      Ford, Inc., 15 AD3d 628 [2d Dept. 2005]; Favish v. Tepler, 294 AD2d
      396 [2d Dept. 2002]). The determination of spoliation sanctions is
      within the broad discretion of the court (see, Barahona v. Trustees
      of Columbia Univ. in City of NY, 16 AD2d 445 [2d Dept. 2005]; Horace
      Mann Ins. Co. v. E.T. Appliances, 290 AD2d 418 [2d Dept. 2002])."

      "In opposition to the motion, the plaintiff argues that it is not
      appropriate to dismiss the complaint as the disposal of the helmet
      and shield was not willful or contumacious. However, the plaintiff
      admits that its inspection may serve to mitigate damages had it been
      defective or negligently manufactured. Nevertheless, the plaintiff
      contends that the motion should be denied in its entirety."

      "Contrary to the plaintiff's contention, the instant case is not
      analogous to those cases he cites where the court held that no
      sanction was appropriate for the loss of evidence prior to inspection
      (see, Deveau v. CF Galeria at White Plains, 18 AD3d 695 [2005];
      Barahona v. Trustees of Columbia Univ. In City of NY, 16 AD3d 445 ]2d
      Dept. 2005]). In those cases, the Second Department specifically
      found that the loss of the evidence was not prejudicial (see,
      Iannucci v. Rose, 8 AD3d 437 [2d Dept. 2004]; Madison Avenue
      Caviarteria v. Hartford Steam Boiler Inspection & Ins. Co., 2 AD3d
      793 [2d Dept. 2003]; see, also, Kirschen v. Marino, 16 AD3d 555 [2d
      Dept. 2005][The gravamen of the burden on a motion pursuant to CPLR
      3216 is a showing of prejudice])."

      "Here, the plaintiff admits that inspection of the helmet and shield
      may assist in mitigating damages regarding plaintiff's head injuries.
      The court finds that it would be unfair not to impose some sanction
      due to the destruction, albeit negligent, of this evidence. However,
      in the absence of evidence that the destruction was willful or that
      the lost item is the 'key' evidence in the case, the drastic remedy
      of dismissal of the complaint is unwarranted (see, De Los Santos v.
      Polanco, 21 AD3d 397 [2d Dept. 2005]; Marro v. St. Vincent's Hosp. ,
      294 AD2d 341 [2d Dept. 2002]). Thus, the court finds that the
      plaintiff shall be precluded from offering any evidence regarding any
      head injuries (i.e, fractured skull and nose and lacerated cornea)
      allegedly sustained as the result of the accident at the time of
      trial."

      "Accordingly, it is ORDERED, that the defendants' motion pursuant to
      CPLR 3216 is granted only to the extent that the plaintiff is
      precluded from offering evidence with respect to any head injuries
      allegedly sustained as a result of the accident at the time of
      trial."

      Larry Rogak
    Your message has been successfully submitted and would be delivered to recipients shortly.