DiDomenico v. C & S Aeromatik Supplies, Inc.

• Decision Date: 28 December 1998
• Citation: 682 N.Y.S.2d 452,252 A.D.2d 41
• Parties: , 1998 N.Y. Slip Op. 11,520 Frank DiDOMENICO, et al., Plaintiffs-Appellants, v. C & S AEROMATIK SUPPLIES, INC., Defendant, CA Aromatics Co., Defendant-Appellant, United Parcel Service, Respondent. Second Department
• Court: New York Supreme Court — Appellate Division

Page 452

682 N.Y.S.2d 452

252 A.D.2d 41, 1998 N.Y. Slip Op. 11,520

Frank DiDOMENICO, et al., Plaintiffs-Appellants, v. C & S AEROMATIK SUPPLIES, INC., Defendant, CA Aromatics Co., Defendant-Appellant, United Parcel Service, Respondent.

Supreme Court, Appellate Division,

Second Department.

Dec. 28, 1998.

Henry Stanziale, Mineola, N.Y., for plaintiffs-appellants.

Harrington Ocko & Monk, L.L.P., White Plains, N.Y. (Glenn A. Monk and Gloria L. Bisogno of counsel), for defendant-appellant.

Hunton & Williams, New York, N.Y. (Jeffrey W. Gutchess of counsel), for respondent.

MILLER, J.P., PIZZUTO, FRIEDMANN and GOLDSTEIN, JJ.

FRIEDMANN, J.

The question on this appeal is whether summary judgment should be granted to the plaintiff Frank DiDomenico (referred to as the plaintiff throughout this opinion, as Mrs. DiDomenico's claim is merely derivative), as well as to the codefendant CA Aromatics Co. (hereinafter CA) on its cross claims against the defendant United Parcel Service (hereinafter UPS), the plaintiff's employer. Summary relief is sought by these parties because the dilatory behavior of UPS in responding to the plaintiff's discovery demands resulted in the wholesale destruction of essentially all of the physical evidence in the case.

We conclude that summary judgment is appropriate under the circumstances because UPS not only disposed of the defective package which had allegedly caused the plaintiff's injuries, but also, with knowledge of the plaintiff's need for the evidence, delayed providing any records until all of the corporate defendants had destroyed their internal documents in accordance with routine retention schedules. As a consequence, the plaintiff has been left without the means of proving his case, and the defendant CA cannot properly defend itself. Because UPS acted with knowledge, with persistence, without explanation or excuse, and in violation of two court orders, its behavior was clearly wilful.

Indeed, it can only be concluded that the determined noncompliance by UPS with the plaintiff's discovery efforts was undertaken to deliberately forestall a third-party action being brought against it. Finally, in addition to the fact that UPS wilfully failed to disclose information that courts have repeatedly found ought to have been disclosed, and refused to obey court orders directing disclosure (CPLR 3126), UPS has acted as a spoliator of evidence. Courts have routinely stricken the pleadings of a "spoliator" whose destruction of proof has resulted in a severe handicap to its opponents, regardless of whether the destruction was wilful or simply negligent.

FACTS

On December 2, 1991, the plaintiff Frank DiDomenico was employed part-time by UPS as a "Metro Unloader" at UPS's facility known as the "Nassau Hub", located at 300 Oak Street in Uniondale. The Hub was an indoor garage where UPS trucks, filled with packages picked up during the day, were emptied at night, and their contents sorted for subsequent delivery. After the laden trucks were brought into the garage, they were backed up into various bays where they remained until they were unloaded.

On the evening of December 2, 1991, the plaintiff was assigned to an unaccustomed Right after the event, Supervisor Orenstein filled out an injury report in which he wrote: "[The plaintiff] grasped a package and did not know it was punctured and the package (which was a haz[ardous] mat[erial] ) (ethyl acetate) squirted in his face". Eight days later, the plaintiff filed a Workers' Compensation claim.

bay, where he was to unload packages from several UPS trucks and place the parcels on a nearby conveyer belt. As he unloaded cartons from one of the trucks, the plaintiff noticed seven or eight boxes bearing red "hazardous material" labels. Each box was made of brown cardboard, was about two feet square, and weighed five to six pounds. The plaintiff noticed nothing unusual about any of the packages, and saw no stains or discoloration on the outside of any of the cardboard casings. He began removing the boxes one by one, placing them "label[-side] up" on the conveyor belt. As the plaintiff picked up the third of these parcels--gripping both sides with his hands, and supporting its weight with at least a few fingers on the bottom--the box caved in, and the plaintiff was squirted in the face and left eye with a caustic liquid. Looking into the now-open box, the plaintiff saw a plastic, "milk bottle type" receptacle, streaming fluid from an aperture at the top. Assisted by his supervisor, Scott Orenstein, the plaintiff hastened to the lavatory to flush out his eye and was then transported to the hospital by ambulance. He did not pause to read the label on the box, and did not ascertain the identity of the shipper in the period immediately following his accident.

The plaintiff retained a lawyer who, on February 20, 1992, wrote to UPS to request its cooperation with the plaintiff's investigator "in identifying the manufacturer, packer and shipper of this caustic liquid, including shipping orders and other documentation", in order to identify "the parties responsible" for the plaintiff's injuries.

When UPS gave no help to the plaintiff's investigator, he brought on an order to show cause, dated July 31, 1992, for leave, pursuant to CPLR 3102(c), (d), "to examine records [of UPS] pertaining to a shipment being unloaded by [him], including but not limited to shipping orders, routing slips and any and all memorand[a] relating thereto, to determine the party to sue in a negligence action". The plaintiff also sought to depose a UPS employee who could interpret the various documents. The order to show cause was signed by Justice Edward McCarty on September 11, 1992.

On September 21, 1992, UPS entered into a stipulation with the plaintiff's attorney, according to which the order to show cause was adjourned to October 30, 1992, upon the condition that UPS produce a witness with knowledge who would testify "in full". That witness, identified as Tom Finn, a Customer Service Area Manager, would also "attempt to produce any and all records referable to the incident", including "delivery receipts, bills of lading, memorandums, and any and all documents" reflecting the identity of the shipper of the ethyl acetate. It was agreed that if the results of Finn's deposition were satisfactory, the plaintiff would withdraw his order to show cause.

On October 19, 1992, Finn appeared for deposition. He knew nothing about the incident and had not searched for any documents relating to the event. According to Finn, UPS kept records of such accidents for 12 to 18 months. Throughout Finn's examination before trial, the plaintiff's attorney repeatedly demanded documents and left spaces for information to be provided. Both Finn and his counsel promised to produce the requested items. These materials included billing records for any ethyl acetate unloaded at the Hub on December 2, 1991, the computer printout of UPS relative to damaged packages unloaded at the Hub on December 2, 1991, the name and address of the shipper of the defective package, any photographs of that package, and the employment status and/or last known address of the plaintiff's supervisor Scott Orenstein. At the end of Finn's examination before trial, the attorney for UPS suggested--"stressing" that he was speaking only "upon information and belief"--that "C and S Aeromatik Supplies" was "the shipper".

On July 7, 1993, the plaintiff's counsel wrote to complain that no executed copy of Finn's deposition transcript had yet been On or about August 24, 1993, the plaintiff filed a summons and complaint naming as defendants CA Aromatics Co. and C & S Aeromatik Supplies, Inc. (hereinafter C & S), although it appears that C & S was never served. Among the plaintiff's allegations were negligent packaging, failure to seal, failure to inspect, and failure to warn. At his deposition in September 1995, CA's witness, Elliot Kleinman, testified that CA was in the business of manufacturing and supplying flavors and fragrances as raw materials to the makers of beverages, candies, liquors, colognes, and perfumes. Although CA did use UPS to ship ethyl acetate in quantities smaller than five gallons, the containers employed for these shipments were cylindrical steel drums which had been fitted with crimped closure spouts and which were sealed within fiberboard cartons. Kleinman further testified to the elaborate paperwork required for such hazardous material shipments. However, all labels, forms, log entries, and notices of leaky and/or damaged packages were kept by CA for only one year and then destroyed. CA first learned of the plaintiff's accident when it received his summons and complaint, at least 18 months after the event, by which time all of its records had been discarded pursuant to routine procedures.

returned, and that none of the material demanded at Finn's examination before trial had been supplied. Although counsel returned Finn's executed transcript later that same month, he indicated that a search for the requested documents was still ongoing. On August 27, 1993, the plaintiff's attorney renewed his requests, but the response by UPS in mid-October 1993 was limited to the names and addresses of Supervisor Orenstein and C & S Aromatik Supplies, Inc. Otherwise, UPS claimed, its "attempts to secure the documentary evidence requested in [Finn's] examination" were continuing.

Continuing his efforts to extract information from UPS, on October 28, 1993, the plaintiff's counsel moved to compel UPS to comply with the order to show cause of September 11, 1992, and the stipulation of September 21, 1992. In opposition, the Compliance Supervisor of UPS, Mark Robson, submitted an affidavit in which he averred that all of the requested material (e.g., delivery and pick-up records, damaged package reports, shipping cards, ethyl acetate shipment records, and hazardous material certification sheets) had been destroyed...