Bruno v. Peak Resorts, Inc.

• Decision Date: 14 January 2021
• Docket Number: 530343
• Citation: 138 N.Y.S.3d 744,190 A.D.3d 1132
• Parties: Joseph BRUNO, Appellant, v. PEAK RESORTS, INC., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 1132

138 N.Y.S.3d 744

Joseph BRUNO, Appellant,

v.PEAK RESORTS, INC., et al., Respondents.

530343

Supreme Court, Appellate Division, Third Department, New York.

Decided and Entered: January 14, 2021

Steven M. Melley, PLLC, Rhinebeck (Steven M. Melley of counsel), for appellant.

Roemer Wallens Gold & Mineaux LLP, Albany (Matthew J. Kelly of counsel), for respondents.

Before: Garry, P.J., Egan Jr., Mulvey, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

Appeal from an order of the Supreme Court (Fisher, J.), entered August 30, 2019 in Greene County, which, among other things, partially granted defendants' motion for an adverse inference charge.

In March 2016, plaintiff sustained injuries while skiing at the Hunter Mountain ski area, which is owned and operated by defendants. Plaintiff commenced this action in September 2017, claiming that, among other things, defendants acted negligently by failing to post closed notices on certain ski trails. Following joinder of issue, the parties engaged in discovery; as pertinent here, plaintiff's responses to defendants' discovery demands, including answers during the examination before trial, denied that plaintiff had made any social media postings about the accident. Later, defendants moved for dismissal on the grounds of spoliation of evidence (see CPLR 3126 ), claiming that, in the months following his accident, plaintiff posted a comment to a blog entry about trail conditions at Hunter Mountain on the date of his injuries and later deleted the comment. Plaintiff opposed the motion, and attached copies of comments, photos and posts that he had made on his Facebook page discussing his accident, injuries and activities since the accident. Supreme Court granted defendants' motion, finding that plaintiff had failed to provide "accurate representations" of his online posts, and imposed an adverse inference charge against plaintiff at trial, which plaintiff may purge by recovering the deleted comment. Plaintiff appeals.

Courts may "impose sanctions under CPLR 3126 when a party intentionally, contumaciously or in bad faith fails to comply with a discovery order or destroys evidence prior to an adversary's inspection" and, in appropriate circumstances, when "a litigant negligently disposes of crucial items of evidence before the opposing party has had an opportunity to view them" ( Hartford Fire Ins. Co. v. Regenerative Bldg. Constr., Inc., 271 A.D.2d 862, 863, 706 N.Y.S.2d 236 [2000] [internal quotation marks and citations omitted]). In seeking sanctions for spoliation of evidence, the moving party must "demonstrate[ ] that [the nonmoving party] possessed an obligation to preserve the evidence at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the [moving] party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" ( LaBuda v. LaBuda, 175 A.D.3d 39, 41, 105 N.Y.S.3d 585 [2019] [internal quotation marks, brackets and citations omitted]; see Gitman v. Martinez, 169 A.D.3d 1283, 1286, 95 N.Y.S.3d 427 [2019] ). In fashioning its sanction, the court "will look to the extent that the spoliation of evidence may prejudice a party and whether dismissal will be necessary as a matter of elementary fairness" ( Miller v. Weyerhaeuser Co., 3 A.D.3d 627, 628, 771 N.Y.S.2d 200 [2004] [internal quotation marks and citations omitted], lv dismissed 3 N.Y.3d 701, 785 N.Y.S.2d 28, 818 N.E.2d 670 [2004] ; see LaBuda v. LaBuda, 175 A.D.3d at 42, 105 N.Y.S.3d 585 ). "The decision to impose sanctions for the spoliation of evidence is within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion" ( State of New York v. 158th St. & Riverside Dr. Hous. Co., Inc., 100 A.D.3d 1293, 1295, 956 N.Y.S.2d 196 [2012] [citations omitted], lv denied 20 N.Y.3d 858, 2013 WL 452396 [2013] ; see Ortega v. City of New York, 9 N.Y.3d 69, 76, 845 N.Y.S.2d 773, 876 N.E.2d 1189 [2007] ).

Here, defendants supported the motion by submitting screenshots of an online blog entry written by a third party about Hunter Mountain that discussed the conditions of the trail where plaintiff was injured on the date of his accident. These screenshots indicated that plaintiff had posted a comment on this entry several months after the accident, but later deleted the comment. Defendants further submitted the affidavit of their insurance adjuster, averring that, at the time plaintiff posted and deleted this comment, he was represented by counsel. Witnesses averred in deposition testimony that, immediately following the accident, plaintiff admitted that he was aware that the ski trail where he was injured was closed. During his own examination before trial, plaintiff denied that he had made "any comments on any [online] site of any kind, with regard to this accident," and further denied "delet[ing] any information from any social media posting of any kind." Upon specific inquiry as to the Hunter Mountain blog, plaintiff stated that he was "[v]aguely" familiar with that blog, but "[did not] believe" that he had posted or deleted comments on the blog.

In opposition to defendants' motion to dismiss, plaintiff claimed that he had remembered the comment he made on the blog entry only after his examination before trial. He averred that he had asked whether the trail on which he sustained his injuries was open or closed on the day of his accident, and had later deleted the comment because he had not received a response to his inquiry, but that he had not intended to destroy or hide evidence. Plaintiff also produced 12 Facebook posts and comments pertaining to his injuries, which included photos of an X ray, his bandaged hand and comments on his health and activities following the accident. This production contradicted his earlier responses to defendants' demands for social media discovery (see CPLR 3101, 3120 ), in which plaintiff had acknowledged possessing a Facebook account, but denied making posts or posting photos relative to his accident, injuries or activities since the accident.

Turning first to plaintiff's obligation to preserve the deleted comment on the Hunter Mountain blog, the record reveals that, at the time he made and deleted the comment – actions that he now admits to undertaking – he had retained counsel. Thus, although he was not yet a party, plaintiff was on notice that the comment might be needed for future litigation (see Gitman v. Martinez, 169 A.D.3d at 1286–1287, 95 N.Y.S.3d 427 ; Simoneit v. Mark Cerrone, Inc., 122 A.D.3d 1246, 1247–1248, 996 N.Y.S.2d 810 [2014] ). Although ...