Preview:

Luther v S. W. Wasserman Real Estate 2009 NY Slip Op 31646(U) July 15, 2009 Supreme Court, New York County Docket Number: 104517/2007 Judge: Debra A. James Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

[* 1 ]
SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: DEBRA A. JAMES
Justice

PART 59
Index No.:
10451712007

MICHAEL LUTHER,
Plaintiff,
-vS.W. WASSERMAN REAL ESTATE, 305 LEXINGTON ASSOCIATES, LLC a n d S.W. MANAGEMENT, LLC,
Defendants.

Motion Date:

03/17/09
001

Motion Seq. No.:

Motion Ca,, No,:

The following papers, numbered 1 to 4 were read on
PAPERS NUMBERED

Notice of Motion/Order to Show Cause -Affidavits -Exhi Answering Affidavits - Exhibits Replying Affidavits - Exhibits

Cross-Motion :

0 Yes

No

Upon the foregoing papers,

-w

The court shall grant p l a i n t i f f ' s motion f o r discovery

sanctions o n l y to the extent t h a t this court shall issue a n order that precludes the defendants from o f f e r i n g any e v i d e n c e at trial as to the condition of the discarded hot water m i x i n g valve a n d other parts located at the boiler that controlled the temperature of the hot water circulated throughout the building. Such order

also directs an adverse inference charge with respect to such

discarded p a r t s .

/

Plaintiff alleges that on March 25, 2 0 0 6 , w h i l e taking a

Check One:
Check if appropriate:

FINAL DISPOSITION

NON-FINAL DISPOSITION REFERENCE

DO NOT POST

[* 2 ]

shower in his apart.merit, he accidentally h i t the water temperature control lever -in his bathroom shower. that caused the wal:er to t u r n h o t . his hoily . Plaintiff alleyes that t e complained about excessively hot i water to defendants both in writing and verbally several times prjor to his burn incident. IIowever, he never notified defendants of, his accident. Nine
As a result, he fell and sustained burns to

months later, on November 15, 2006, his attorneys served a Show
Cause Order for pre-action discovery on defendants, which was

issued in Westchester County Supreme Court, for inspection and
testing of the boiler and mixing valves in the building.

Such

Show Cause Order temporarily restrained defendants from repairing or altering the boiler or water heater a n d a n y related equipment.
Before the hearing for a preliminary injunction, which was

adjourned several times, the counsel for the parties engaged in negotiations to amend the restrictive language as winter was approaching and defendants u r g e d that the restrictions were n o t feasible. Pl-aintiff's counsel added hand written language to the

stipulation, which changes defense counsel advised he would have to d i s c u s s with his client. Defendants rejected the language and

di.r-ecteddefense counsel to submit an Order to Show Cause
I ,

modifying t h a t lanquage.

Defense counsel submitted such Show

Cause Order t h t allowed for t h e repair of the boiler or w a t e r

-2-

[* 3 ]

h e a t e r b u t d i r e c t e d that the parts he retained.

Such Order was

signed on k c : e m b e r - 29, 2006.

Upon advising defendants of t h a t

Order, defense c o u n s e l learned from their client for t-he first time that. their plumber had already been sent to check the boiler and water heating system and replaced and discarded some of the
parts on December 8, 2006.

Plaintiff s e e k s t o sanction t h e defendants and particularly
s e e k s an order striking defendants' answer for spoliation of

critical evidence that plaintiff asserts has fatally impaired his ability to establish defendants' negligence. Plaintiff argues

that such sanction is warranted as defendants` failure to retain the parts was intentional. He argues that such intention is

established by the testimony of the building's superintendent that the plumbing contractor was called to service the boiler because of the pending lawsuit. Plaintiff argues that

notwithstanding this admission that the lawsuit motivated the service c a l l , the superintendent never advised the plumbing contractor t.o retaip the parts removed from the boiler in direct contravention of the Order to Show Cause. Plaintiff submits the affidavit of a plumbing and heating expert that st-ates that without the parts that were discarded, he

will be unab1.e to form an opinion as to the cause of the
e : x c e s s i v c i y h o t. water.

He w i l l be unable to determine why t h e

-3-

.. .

[* 4 ]

wat-er t e m p e r a t - u r e was riot properly adjusted or what the temperature was upon di s c h a r y e from the boiler.
D e f e n d a n t s oppose the sanctions, arguing that plaintiff is not

deprived of proving his case based on his inability to inspect the equipment. They urge that only one week after the accident

plaintiff measured the water temperature in his bathroom and took photographs that est-ablish that the temperature was approximately
155 degrees.

They contrast such direct evidence with the weaker

evidence t h a t would have been yielded in the inspection and testing that was not sought by plaintiff until nine months after the accident, which would not: establish the condition of the equipment at the time of plaintiff's accident. The court finds that the defendants' discard of the equipment does not leave plaintiff with no means of establishing

a prima facie case against defendants.
Code Reference S t a n d a r d RS-16

Download 2009_31646.pdf

New York Law