Alegria v. Metro Metal Products, Inc.

• Decision Date: 20 August 2010
• Citation: 906 N.Y.S.2d 887,29 Misc.3d 591
• Parties: Juan ALEGRIA and Angela Alegria, Plaintiffs, v. METRO METAL PRODUCTS, INC. and Joseph H. Accarino, Defendants.
• Court: New York Supreme Court

906 N.Y.S.2d 887

29 Misc.3d 591

Juan ALEGRIA and Angela Alegria, Plaintiffs,

v.METRO METAL PRODUCTS, INC. and Joseph H. Accarino, Defendants.

Supreme Court, Kings County, New York.

Aug. 20, 2010.

Christopher J. Smith, Esq., for Plaintiffs Juan Alegria and Angela Alegria.

Harold M. Somer, Esq., for Defendants Metro Metal Products, Inc. and Joseph H. Accarino.

JACK M. BATTAGLIA, J.

The Verified Complaint of plaintiffs Juan Alegria and Angela Alegria alleges that, on or about September 26, 2006, plaintiff Juan Alegria was severely injured while operating machinery on the premises of defendant Metro Metal Products, Inc., owned by defendant Joseph H. Accarino. With this motion, Defendants seek an order, "pursuant to CPLR 3212, granting summary judgment dismissing the action pursuant to CPLR 3211(a)(1), (4), (5), (7) and (8)." ( See Motion for Summary Judgment Dismissing This Action and for Other Relief dated May 13, 2010.)

The Verified Complaint purports to allege three causes of action. In a First Cause of Action, Plaintiffs allege that Juan Alegria's injury "was the result of the negligence of the defendant [ sic ] in failing to reasonably and adequately keep, maintain and operate said machinery" (Verified Complaint ¶ 11); and in a Third Cause of Action, that Angela Alegria, his wife, "was deprived of the society, services, consortium,love and affection" of her husband ( id. ¶ 28.) Plaintiffs also allege, although not as part of the First or Third Cause of Action, that Juan Alegria was "an employee of Metro and/or Accarino at the time of this occurrence" ( id. ¶ 24.)

In a Second Cause of Action, Plaintiffs allege that Defendants "were put on written notice that the machinery in question was needed as evidence in a personal injury lawsuit to be brought ... against the manufacturer of said machinery," but that Defendants "failed to preserve said machinery," and "caused said machinery to be unavailable" ( id. ¶ ¶ 14, 16, 18.) And further, that as a result of Defendants' negligence and recklessness in failing to keep the machinery available, plaintiff Juan Alegria "is unable to identify the manufacturer of the machinery," "has been deprived of the opportunity to inspect the machinery," and "has been deprived of evidence that is essential to the prosecution of his personal injury lawsuit" ( id. ¶¶ 19-24.)

To the extent that Defendants' motion seeks dismissal pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction, it must be denied. In their Verified Answer, served on December 23, 2009, Defendants allege as a First Affirmative Defense that "[t]he court lacks in personam jurisdiction by reason of lack of proper service" (Verified Answer ¶ 6.) Since this motion was not served until May 13, 2010, well beyond the sixty days specified for moving for judgment on that ground, the objection is deemed waived. ( See CPLR 3211 [e].)

Defendants seek dismissal of Plaintiffs' First and Third Causes of Action pursuant to CPLR 3211(a)(1), "documentary evidence"; 3211 (a)(5), release; and 3211(a)(7), failure to state a cause of action. Defendants contend that the alleged claims are barred by the exclusivity provisions of the Workers' Compensation Law, citing §§ 10, 11, 50, and 53 of the statute. As noted above, the Verified Complaint itself alleges that Juan Alegria was employed by Defendants when he was injured.

Defendants submit the Affidavit of defendant Joseph H. Accarino, president of defendant Metro Metal Products, Inc. Mr. Accarino asserts that Mr. Alegria "was an employee of Metro Metal and was injured on the job"; and that Mr. Alegria "applied for and received worker's [ sic ] compensation benefits through New York State Insurance Fund which was the entity through which my insurance was maintained." (Affidavit ¶ 4.) But Defendants submit no evidence in admissible form as to the existence of workers' compensation coverage, or Mr. Alegria's application for and receipt of workers' compensation benefits.

Although Defendants fail to establish prima facie that they are entitled to dismissal pursuant to the Workers' Compensation Law, the Court notes that Plaintiffs do not address in their opposition this aspect of Defendants' motion, and that prediction as to the fate of the First and Third Causes of Action (except, perhaps, as to spoliation) does not seem difficult.

Defendants seek dismissal of the alleged Second Cause of Action pursuant to CPLR 3211(a)(4), that "there is another action pending between the same parties for the same cause of action," and CPLR 3211(a)(7), failure to state a cause of action. In March 2008, Juan Alegria commenced a special proceeding in this court against Metro Metal Products, Inc. (index no. 4328/08), seeking pre-action disclosure pursuant to CPLR 3102(c). Specifically, Mr. Alegria sought an order "enabling [him] to obtain the manufacturers [ sic ] name, serial number, purchase records, maintenance records, safety records, photographsand a physical inspection of the press machine which caused the partial amputation of [Mr. Alegria's] right index finger, so that the parties can be identified, to aid in the framing of a complaint in an action to be commenced." (Order to Show Cause dated March 24, 2008.)

On July 31, 2008, Hon. Sylvia O. Hinds-Radix granted Mr. Alegria's petition, stating:

"On default and without opposition:

Petitioner's Order to Show Cause for an order allowing pre-litigation discovery is granted in its entirety. Respondent Metro Metal shall provide manufacturer's name, serial number, purchase records, maintenance records, safety records and photographs with regard to the subject press machine upon which petitioner was injured w/in 30 days. Respondent shall further allow petitioner to conduct a physical inspection of the subject press on a mutually agreeable date and time w/in the next 30 days. A copy of this order shall be served on respondent w/in 10 days of the date hereof."

Technically, the 2008 special proceeding is still pending. Justice Hinds-Radix's July 31, 2008 order is not also designated a judgment in the proceeding ( see CPLR 411), and has not been entered as such. In any event, the special proceeding for pre-action disclosure is not "for the same cause of action" ( see CPLR 3211[a][4] ) as the Second Cause of Action for damages for spoliation of evidence. In any event, "the court need not dismiss on this ground but may make such order as justice requires" ( see id.) Until the special proceeding is concluded with entry of judgment, since both the special proceeding and this action are in the case inventory of this Court (Part 59), the appropriate disposition would appear to be an order that further proceedings be held jointly ( see CPLR 602[a].) Either Plaintiffs or Defendants may move for such an order ( see id.)

Defendants' contention that Plaintiffs' Second Cause of Action cannot be the basis of any recovery, whether considered as addressed to the Verified Complaint as a pleading pursuant to CPLR 3211(a)(7) for failure to state a cause of action, or for summary judgment on the law and facts pursuant to CPLR 3212, is not so easily disposed of. The question is whether, and, if so, under what circumstances, may an employee state a claim against the employer for the spoliation of evidence needed for a claim against a third-party for a workplace injury. In the first instance, the question is whether such a claim can be asserted after the Court of Appeals decision in Ortega v. City of New York, 9 N.Y.3d 69, 845 N.Y.S.2d 773, 876 N.E.2d 1189 [2007], which held that "the tort of third-party negligent spoliation of evidence ... is not cognizable in this state" ( id. at 73, 845 N.Y.S.2d 773, 876 N.E.2d 1189.)

Prior to Ortega, an employee could state a cause of action against an employer for negligent spoliation of evidence neededto establish a claim against a third-party, with the decisive factor in most cases being the existence or absence of a duty on the part of the employer to preserve the evidence. ( See Monteiro v. R.D. Werner Co., 301 A.D.2d 636, 637-38, 754 N.Y.S.2d 328 [2d Dept. 2003]; Ripepe v. Crown Equip. Corp., 293 A.D.2d 462, 463-64, 741 N.Y.S.2d 64 [2d Dept. 2002]; Curran v. Auto Lab Serv. Ctr., 280 A.D.2d 636, 637-38, 721 N.Y.S.2d 662 [2d Dept. 2001]; DiDomenico v. C & S Aeromatik Supplies, 252 A.D.2d 41, 53, 682 N.Y.S.2d 452 [2d Dept. 1998]; Constanza v. Adamatic A Corp., 221 A.D.2d 495, 496, 633 N.Y.S.2d 407 [2d Dept. 1995]; McAllister v. Renu Indus. Tire Corp., 202 A.D.2d 556, 557, 609 N.Y.S.2d 92 [2d Dept. 1994];Vaughn v. City of New York, 201 A.D.2d 556, 557-58, 607 N.Y.S.2d 726 [2d Dept. 1994]; Coley v. Arnot Ogden Mem. Hosp., 107 A.D.2d 67, 69, 485 N.Y.S.2d 876 [3d Dept. 1985]; Caban v. Gottlieb Iron Works, 147 Misc.2d 583, 585-86, 558 N.Y.S.2d 810 [Sup. Ct., N.Y. County 1990], aff'd sub. nom. Caban v. Bonoco Constr. Co., 172 A.D.2d 377, 568 N.Y.S.2d 758 [1st Dept. 1991]; Weigl v. Quincy Specialties Co., 158 Misc.2d 753, 756-57, 601 N.Y.S.2d 774 [Sup. Ct., N.Y. County 1993]; Raphael v. 18 Restaurant, 954 F.Supp. 549, 553-54 [E.D.N.Y. 1996]; see also MetLife Auto & Home v. Joe Basil Chevrolet, 303 A.D.2d 30, 37, 753 N.Y.S.2d 272 [4th Dept. 2002], aff'd 1 N.Y.3d 478, 483-84, 775 N.Y.S.2d 754, 807 N.E.2d 865 [2004].)

Under this caselaw, a duty to preserve evidence for the benefit of an injured employee would be found where the employer "promised or agreed to preserve" the evidence. ( See Ripepe v. Crown Equip. Corp., 293 A.D.2d at 463-64, 741 N.Y.S.2d 64; Curran v. Auto Lab. Serv. Ctr., 280 A.D.2d at 637, 721 N.Y.S.2d 662; McAllister v. Renu Indus. Tire Corp., 202 A.D.2d at 557, 609 N.Y.S.2d 92 ["promise or agreement to preserve"]; Coley v. Arnot Ogden Mem. Hosp., 107 A.D.2d at 69, 485 N.Y.S.2d 876 ["promise ... to inspect or safeguard"].) The opinions also suggest that a duty to preserve, or make evidence available to the employee, will arise when the employer has "notice" of the employee's intent to file a lawsuit or that the evidence "might be needed...