Klein ex rel. Klein v. Seenauth

Decision Date25 March 1999
Citation180 Misc.2d 213,687 N.Y.S.2d 889
Parties, 1999 N.Y. Slip Op. 99,166 Keren Joy KLEIN, an Infant, by Her Father and Natural Guardian, Lewis KLEIN, et al., Plaintiffs, v. Nacool SEENAUTH et al., Defendants and Third-Party Plaintiffs, and City of New York, Third-Party Defendant.
CourtNew York City Court

Curtis, Zaklukiewicz, Vasile, Devine & McElhenny, Merrick (Paul S. Devine of counsel), for defendants and third-party plaintiffs.

Michael D. Hess, Corporation Counsel of New York City, for third-party defendant.

Beth J. Schlossman, Brooklyn (Bruce Provda of counsel), for plaintiffs.

MARTIN E. RITHOLTZ, J.

At first glance, the instant motion pursuant to CPLR 3126 to dismiss plaintiff's complaint based on an alleged willful failure to produce the bicycle involved in the subject accident of June 14, 1995 for inspection and testing, and plaintiffs' response that said bicycle had long been thrown out, would present a classical spoliation issue fact pattern. What complicates the matter is that over a year ago the movants herein previously moved to strike this action from the trial calendar, alleging that an inspection of the subject bicycle had not yet been held, and plaintiffs' counsel castigated movants by calling the motion "ridiculous" since "they can examine the bike at any time." The quandary before the court is whether counsel's previous affirmation attesting that the subject bicycle could be inspected in December, 1997 is binding on plaintiffs, and that the present hearsay affirmation should therefore be disregarded, resulting in the dismissal of the action, either as a CPLR 3126 sanction or as a spoliation sanction. On the other hand, if the December, 1997 representation by plaintiffs' counsel is not binding, and the court finds that the subject bicycle was in fact thrown out shortly after the accident, it may very well be argued that the severe sanction of dismissal is unwarranted, and that a monetary sanction levied personally against counsel for misrepresentation would be appropriate. Many conflicting published opinions have been rendered on submitted motions addressing the aforementioned issues; but the court finds that, for the reasons stated below, a multipurpose hearing is mandated, and that a perfunctory determination, although expedient, would not serve the interests of justice.

BACKGROUND

The Indorsed Complaint, dated December 20, 1996 alleges that on June 14, 1995, the then nine year old infant plaintiff, Keren Joy Klein, was caused to be thrown from her bicycle, when the tire got stuck in the defective sidewalk located in front of the residence of defendants Nacool and Pramilla Seenauth, thereby causing her serious injuries. On May 19, 1997 the defendants impleaded the third-party defendant City of New York.

An Examination Before Trial of the infant plaintiff was held on July 16, 1997, who testified as follows:

"... I was riding my bike in the street and then a car was coming, so I went on the crosswalk and I went to the sidewalk and then I fell down because the bumps on the tire, the grooves got stuck in there and I fell down.

Question: Got stuck where?

Answer: In between this, and there was like a gap and the mountain bikes have like little things that got stuck inside there.

Question: So you were on a mountain bike?

Answer: Yes.

Question: One of the knobs on the tires got stuck in the sidewalk?

Answer: Yes.

Question: And that caused you to fall down?

Answer: Yes"

(Transcript, page 7, line 21 to page 8, line 13). When asked what kind of bicycle she was riding, the infant plaintiff identified it as a "Sahara Huffy" (page 33, line 3). Interestingly, said infant plaintiff's father, Lewis Klein, the second named plaintiff in this action, submitted a sworn correction on September 8, 1997, indicating that the subject bicycle was a "16"' Ross Bike peddle brakes no gears."

On November 19, 1997, plaintiffs filed a Notice of Trial and Certificate of Readiness, and on December 15, 1997 the defendants/third-party plaintiffs moved to strike said Notice, contending that they "have not yet had the opportunity to examine the bicycle involved in the accident." In opposition, Bruce Provda, Esq., trial counsel to Beth J. Schlossman, Esq., attorney for plaintiff affirmed "under penalties of perjury" on December 22, 1997 that "If defendants want to examine the bicycle, let them examine the bike. They are going to find absolutely nothing, but a standard child's bike and to ask to strike the Notice of Trial because they have not had an opportunity to examine the bike, is ridiculous. They can examine the bike at any time. They were advised of that and they are not going to find anything out of the ordinary." On February 2, 1998, the court granted the motion, striking the action from the trial calendar, on the grounds that "the inspection of the subject bicycle ... has yet to be held."

It appears that subsequent to the aforementioned order, movants sent four good faith letters (dated 3/11/98, 4/23/98, 4/29/98, and 8/20/98) demanding an inspection of the subject bicycle, to no avail.

On December 10, 1998, defendants/third-party plaintiffs moved herein pursuant to CPLR 3126 to dismiss plaintiffs' complaint with costs on the grounds that plaintiffs wilfully failed to produce the subject bicycle for inspection and testing. In opposition, plaintiff Lewis Klein submitted an affidavit dated January 25, 1999, indicating that on June 14, 1995, he had been divorced from the infant plaintiff's mother and was not residing with said infant plaintiff. He further attested that "I was able to ascertain that her mother, a short time after the accident, either prior to my attorney commencing suit or at a point in time after suit had commenced, threw out the bicycle in question as the bicycle was no longer functioning because of the accident." Bruce Provda, Esq., also submitted an affirmation in opposition, dated January 28, 1999, stating "Partially it is my fault that I did not communicate with my clients sooner concerning the status of the bicycle and if I had communicated with them sooner, I would have been more alert to the fact that the bike had long been thrown out by the child's mother and as such, is not available at any time for inspection."

ANALYSIS

In a recent Appellate Division, Second Department decision it was held that: "Separate and apart from CPLR 3126 sanctions is the evolving rule that a spoliator of key physical evidence is properly punished by the striking of its pleading" (See DiDomenico v. C & S Aeromatik Supplies, 252 A.D.2d 41, 682 N.Y.S.2d 452, 459; see also Hill v. Douglas, --- A.D.2d ----, 680 N.Y.S.2d 848). Besides the availability of the extreme CPLR 3126 and/or spoliator sanctions of dismissal, the court may, in the alternative, impose monetary sanctions pursuant to CPLR 3126, or award costs and financial sanctions for frivolous conduct in civil litigation, pursuant to 22 NYCRR 130-1 (See Taub v. Wulwick, 168 A.D.2d 492, 562 N.Y.S.2d 734; Gabrelian v. Gabrelian, 108 A.D.2d 445, 489 N.Y.S.2d 914). Under the circumstances herein, the court also feels compelled to comment on relevant ethical considerations, including one of the recently promulgated standards of the New York State Standards of Civility. Finally, certain evidentiary considerations preclude a summary disposition of this motion, and as will be explained, a multipurpose hearing is mandated.

I. CPLR 3126 SANCTIONS OF PRECLUSION AND DISMISSAL

It is well settled that the overriding objective of CPLR article 31 is not punitive but, rather, the liberal and full disclosure of all evidence which is rational and necessary or relevant to the issues to be tried (See Miller v. Duffy, 126 A.D.2d 527, 528, 510 N.Y.S.2d 651). In pertinent part, CPLR 3126 provides that a court, in its discretion, may impose a variety of sanctions upon a party who either (a) "refuses to obey an order for disclosure" or (b) "wilfully fails to disclose information which the court finds ought to have been disclosed." It has been noted that "this section is not a procedure to punish for contempt, but one to insure that disclosure proceedings are not frustrated" (See 6 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3126.05, p. 31-633). There have been conflicting decisions as to the appropriate sanction pursuant to CPLR 3126 for the discarding of evidence. In a case similar to the facts at hand, a party did not promptly move, upon receipt of an adversary's disclosure notice, for a protective order, and a negative inference was drawn that the requested evidence was discarded after the receipt of the notice, resulting in the imposition of an unconditional order of preclusion, pursuant to CPLR 3126 (See Ferraro v. Koncal Assoc., 97 A.D.2d 429, 467 N.Y.S.2d 284). Another case where a plaintiff's attorney delayed in revealing that the requested evidence was no longer available resulted in the severe sanction of dismissal of the complaint, pursuant to CPLR 3126 (See Sawh v. Bridges, 120 A.D.2d 74, 507 N.Y.S.2d 632, app. dismissed 69 N.Y.2d 852, 514 N.Y.S.2d 719, 507 N.E.2d 312). Eventually, the harsh sanctions of preclusion and dismissal were imposed pursuant to CPLR 3126 in instances where evidence was discarded before a formal notice or order to produce was served, or, for that matter, even before the commencement of the litigation, and these cases served as a bridge to the newly evolved and separate spoliation doctrine (See Brown v. Michelin Tire Corp., 204 A.D.2d 255, 611 N.Y.S.2d 594; Strelov v. Hertz, 171 A.D.2d 420, 566 N.Y.S.2d 646; and General Accident Insurance Co. v. American Honda Motor Co., N.Y.L.J., June 19, 1995, p. 28 [App.Term, 1st Dept.] ). There are an equally abundant number of cases that have denied sanctions, citing insufficient evidence in the record of a wilful, contumacious or bad-faith failure to comply with discovery, and in the absence of a clear-cut showing of wilfulness, the extreme and drastic sanction of...

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