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Cammarata v Drexel (2004 NY Slip Op 51377(U))
[*1]


Decided on May 10, 2004
Supreme Court, Queens County

9857/02
Orin R. Kitzes, J.
the motion pursuant to CPLR 3126 by plaintiff to strike defendants' answer due to their spoliation of critical evidence and precluding defendants from offering any evidence on the issue of liability is granted to the following extent:
According to plaintiff's complaint, the action arises out of an automobile accident that occurred on April 12, 2001, on the east bound Brooklyn Queens Expressway 25 feet west of Northern Boulevard, Queens, County. Plaintiff was operating her motor vehicle when it came into contact with a metal object on the highway that fell from the motor vehicle owned and operated by the defendants. At her deposition, Plaintiff stated that when she saw the large metal object in her lane she slowed her vehicle by slamming on her brakes, however she drove over the object and lost control and hit a concrete cement barrier. A few minutes later, a Fire Department vehicle arrived on
file:///C|/Users/Peter/Desktop/NY/2/2004_51377.htm[4/21/2013 1:41:01 PM] Cammarata v Drexel (2004 NY Slip Op 51377(U))
the scene and firefighters informed plaintiff that they knew where the object in the roadway had come from. At that point, plaintiff noticed a tow truck that had pulled over into the right lane ahead of her vehicle and she was told that the metal object was a bumper or a hitch to a tow truck. Plaintiff also testified that the tow truck operator apologized to her for causing the accident and informed her that damages to her car would be fixed. The police accident report mentions that one of the tow truck operators stated that he "did not know that the object fell off the truck." Bernard Drexel was on the scene of the accident with the tow truck he was operating [*2]and stated at his deposition that he arrived on the scene of the accident in response to a dispatch that a collision had taken place. There, he saw the fire truck, a police car and the metal object in the left lane, that appeared to be about six feet long by ten inches wide and eight inches high. He explained that the firefighters had concluded that the metal object belonged to his tow truck and asked for his license, registration and insurance card. He denied such, claiming it was from another yellow tow truck. Another Jamaica Towing tow truck, operated by Andy MacMillan, arrived at the scene and he towed plaintiff's vehicle from the scene while Bernard Drexel towed the metal object back to the Jamaica Towing storage facility. This metal object was subsequently disposed of or destroyed by defendant Jamaica Towing.
Plaintiff now moves for the striking of defendants' answer for their spoliation of this critical evidence. Defendants oppose this motion, claiming their actions were not wilful and contumacious and in violation of a Court order. " Where a party destroys essential physical evidence and the party seeking that physical evidence is 'prejudicially bereft of appropriate means to confront a claim with incisive evidence,' the spoliator may be sanctioned by the striking of its pleading" (Foncette v LA Express, 295 AD2d 471, 472, 744 N.Y.S.2d 429, quoting New York Cent. Mut. Fire Ins. Co. v Turnerson's Elec., 280 AD2d 652, 653, 721 N.Y.S.2d 92;). Contrary to defendants' argument, 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 party's ability to present [a case or] a defense" (DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, 53, 682 N.Y.S.2d 452; see Squitieri v City of New York, 248 AD2d 201, 203, 669 N.Y.S.2d 589; see also Favish v Tepler, 294 AD2d 396, 741 N.Y.S.2d 910). Thus, while courts are reluctant to dismiss a pleading absent willful or contumacious conduct, it may be warranted as a "matter of elementary fairness"(Puccia v Farley, 261 AD2d 83, 85, 699 N.Y.S.2d 576). Courts have found this fairness also requires that a party is not exempt from C.P.L.R. 3126 sanctions because its destruction of evidence occurred before it was a party to the lawsuit for which the evidence was sought, provided it was on notice that the evidence might be needed for future litigation. See, Baglio v St. John's Queens Hospital, 303 AD2d 341 (2d Dept. 2003.).
file:///C|/Users/Peter/Desktop/NY/2/2004_51377.htm[4/21/2013 1:41:01 PM] Cammarata v Drexel (2004 NY Slip Op 51377(U))
In the instant case, metal object was admittedly disposed of by Jamaica Towing prior to its inspection by plaintiff. Plaintiff's evidence has shown that the metal object is critical evidence to determine its ownership by defendants and its negligent maintenance. In fact, since defendants have claimed no relevant service and/or repair records for the two trucks at the accident scene exist, the metal objects inspection is necessary to prove ownership. Its loss deprives plaintiff of the means of proving her negligence action against defendants. Plaintiff has also shown that defendants were on sufficient notice to have known that there would be future litigation based upon the accident and this object would be needed as evidence. Accordingly, the defendants have disposed of key evidence and plaintiff is prevented from proving her claim through no action on her part. As such, the defendants should be sanctioned for their spoliation. See, Baglio v St. John's Queens Hospital, supra. The court finds it appropriate to preclude defendants from offering evidence on the issues of ownership of the metal object and the creation of the dangerous condition in the roadway.
Dated: May 10, 2004 ........................................................ [*3]


ORIN R. KITZES, J.S.C.
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