Kirkland v. New York City Housing Authority

• Decision Date: 23 December 1997
• Citation: 236 A.D.2d 170,666 N.Y.S.2d 609
• Parties: , 1997 N.Y. Slip Op. 11,241, 1997 N.Y. Slip Op. 11,242 Timothy KIRKLAND, etc., et al., Plaintiffs-Respondents, v. NEW YORK CITY HOUSING AUTHORITY, et al., Defendants-Respondents. NEW YORK CITY HOUSING AUTHORITY, Third-Party Plaintiff-Respondent, v. V.C. VITANZA SONS, INC., Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 609

666 N.Y.S.2d 609

236 A.D.2d 170, 1997 N.Y. Slip Op. 11,241,

1997 N.Y. Slip Op. 11,242

Timothy KIRKLAND, etc., et al., Plaintiffs-Respondents, v. NEW YORK CITY HOUSING AUTHORITY, et al., Defendants-Respondents.

NEW YORK CITY HOUSING AUTHORITY, Third-Party Plaintiff-Respondent, v. V.C. VITANZA SONS, INC., Third-Party Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Dec. 23, 1997.

Kevin J. Spencer, of counsel (Abrams & Martin, P.C., attorneys), for third-party defendant-appellant.

Miriam Skolnik, of counsel (Herbert Rubin, David B. Hamm and Linda M. Brown, on the brief; Herzfeld & Rubin, P.C., attorneys), for defendant/third-party plaintiff-respondent.

Michael Conforti, of counsel (Leahey & Johnson, P.C., attorneys), for defendant-respondent J.B. Slattery & Bro.

Before MURPHY, P.J., and ROSENBERGER, WEINBERG, ELLERIN, RUBIN and TOM, JJ.

TOM, Justice.

This is a wrongful death action brought on behalf of Brenda Lee Moore by her husband, Timothy Kirkland, and her mother, Katherine Moore.

At the time of this incident, decedent Moore lived with her parents at 2955 Eighth Avenue, Apartment 20F, in Manhattan, which is part of the Polo Grounds Towers Houses, a housing project owned and operated by the New York City Housing Authority ("NYCHA"). Decedent's death on October 15, 1984, resulted from a fiery fall through an apartment window to the street below. When police responded, decedent's mother indicated that decedent had had an extensive history of severe psychiatric problems, and that after she had set herself on fire with a newspaper, she jumped out of the bedroom window. Police recovered a partially burned, rolled-up newspaper on the kitchen floor and a shred of decedent's burned blouse on the window sill. The Medical Examiner, on the basis of the autopsy, determined that the death had been a suicide.

However, in commencing the action in February 1986, plaintiffs alleged that decedent had been trying to light a stove in the apartment to cook breakfast, that the stove was defective, that her clothes caught fire when accumulated gas ignited and that as she ran, in flames, through the apartment, she fell out of the window.

Plaintiffs sued the NYCHA, as owner and operator of the apartment complex, and defendant J.B. Slattery & Sons, the manufacturer of the stove. This stove apparently was installed during the summer of 1984 as part of a project by NYCHA to replace all stoves in the 1614 unit housing complex. Six years after plaintiffs filed suit, in July 1992, NYCHA commenced this third-party action on a theory of defective installation against third-party defendant V.C. Vitanza Sons, Inc. ("Vitanza"), which had installed gas connectors between the gas lines and the new stoves in a number of the apartments for this project.

After commencement of the main action, a 1986 order of New York County Supreme Court (George Bundy Smith, J.) directed that defendants be provided an opportunity to inspect the stove. NYCHA never inspected this evidence. Plaintiffs retained an expert, now deceased, to inspect the stove, who photographed it and wrote a report. In 1991, Mrs. Moore requested NYCHA as landlord to remove the stove, which was done. For all practical purposes, the allegedly defective stove thereafter was destroyed. During the following year, NYCHA commenced the third-party action against Vitanza.

In moving to dismiss the third-party complaint for defendant's failure to preserve evidence, Vitanza noted that it had not installed all of the gas connections in the complex; that it had no way of determining whether it had installed the stove in issue; that NYCHA itself had installed those gas connections to which Vitanza had not been provided access; that NYCHA inspected those that Vitanza had installed; that no problems had been identified at the time of the installations and no such subsequent notice of defect had been given with respect to the installation of any stove in the complex. Vitanza maintained that its ability to inspect the stove was critical to its defense and that the destruction of the evidence was so prejudicial that the third-party complaint required dismissal.

NYCHA argued, in opposition, that dismissal of the third-party action was too severe and would be improper because it had not been responsible for the loss of the stove: the Moores had requested the stove be removed and replaced with one they had purchased.

In denying Vitanza's motion, the court initially concluded that the third-party defendant had had the opportunity to inspect the stove by virtue of the 1986 order but had failed to avail itself of that opportunity. When apprised that Vitanza had not been impleaded until 1992, the court noted the correction. However, the court concluded that the stove had not been destroyed in bad faith, and, while conceding that Vitanza effectively had been deprived of an opportunity to inspect the stove, the court nevertheless found the remedy of dismissal of the third-party complaint to be too extreme. We agree with third-party defendant that through no fault of its own, it has been deprived of an ability to present a defense. Accordingly, we reverse the order on appeal and dismiss the third-party complaint.

Spoliation is the destruction of evidence. Although originally defined as the intentional destruction of evidence arising out of a party's bad faith, the law concerning spoliation has been extended to the non-intentional destruction of evidence (e.g., Abar v. Freightliner Corp., 208 A.D.2d 999, 617 N.Y.S.2d 209; see generally Hoenig, "Spoliation of Evidence: Preserving the Crown Jewels," N.Y.L.J. 12/23/88, at 3, col. 1, and citations therein). A correlating trend toward expansion of sanctions for the inadvertent loss of evidence recognizes that such physical evidence often is the most eloquent impartial "witness" to what really occurred, and further recognizes the resulting unfairness inherent in allowing a party to destroy evidence and then to benefit from that conduct or omission (Hoenig, id.). The trend is particularly pronounced in litigation involving products liability, but also is found in negligence cases.

Under New York law, spoliation sanctions are appropriate where a litigant, intentionally or negligently, disposes of crucial items of evidence involved in an accident before the adversary has an opportunity to inspect them (cf., Abar v. Freightliner Corp., supra). We have found dismissal to be a viable remedy for loss of a "key piece of evidence" that thereby precludes inspection (Mudge, Rose, Guthrie, Alexander & Ferdon v. Penguin Air Conditioning Corp., 221 A.D.2d 243, 633 N.Y.S.2d 493).

In the case at bar, while the evidence does not show the spoliation to be intentional, it clearly supports a finding that crucial evidence was negligently destroyed. NYCHA's argument that it should not be held responsible for the loss of the stove since its removal was requested by the Moores is unpersuasive. It was NYCHA's employees who actually removed the stove from the apartment and failed to preserve it. Although affidavits from NYCHA employees in the building complex indicate that the employees authorizing and participating in the removal of the stove had not known about the litigation, there is no indication in the record that NYCHA, as defendant, had taken any steps to assure preservation of the evidence. NYCHA is estopped from disclaiming responsibility for the loss of the stove since it maintained records for the apartments, and was aware of the pending litigation with these tenants and the importance of this piece of evidence. It is undisputed that the stove was within...