Manhattan Inst. v. Crown Plumbing Inc.
| Jurisdiction | New York,United States |
| Parties | MANHATTAN INSTITUTE, INC., Plaintiff, v. CROWN PLUMBING INC., Defendant. v. CROWN PLUMBING INC., Plaintiff, v. v. v. GFP REAL ESTATE, LLC, THE RELIABLE AUTOMATIC SPRINKLER CO. INC., ABC CORPORATIONS 1-10, JOHN DOES 1-10 Defendant. |
| Citation | 2024 NY Slip Op 30224 (U) |
| Decision Date | 10 January 2024 |
| Court | New York Supreme Court |
| Docket Number | Index Nos. 651147/2021,595715/2021,Motion Seq. No. 002 |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 002) 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48 49, 54, 55 were read on this motion to/for HEARING.
In this action, Manhattan Institute, Inc. (plaintiff), a licensed private school, seeks to recover for property damage and loss of business resulting from an alleged sprinkler failure on the 5th Floor of 41-45 West 34th Street, New York, New York (the subject premises). On June 20, 2020, a sprinkler head ruptured and caused flooding on the floor above the subject premises, which plaintiff leased from non-party 34th Street Commercial Properties, LLC. Plaintiff alleges that the resulting flooding was so extreme that it caused plaintiff to permanently close.
Plaintiff brings this action claiming negligence, private nuisance, and breach of contract against Defendant Crown Plumbing, Inc. (Crown Plumbing), who installed the subject sprinkler. Crown Plumbing also brings a third-party action against Reliable Automatic Sprinkler Co. Inc.' (Reliable), the manufacture of the subject sprinkler, and GFP Real Estate LLC (GFP), the property manager for the building for, inter alia, indemnification and contribution.
Through the course of discovery, GFP Real Estate hired non-party LGI Forensic Engineering, PC (LGI Forensic) to inspect the subject sprinkler head. In July 2020, Robert Berryman, an LGI Forensic employee/consultant, took the sprinkler head to coordinate an inspection. Although « plaintiff did not receive any notice from LGI Forensic, Crown Plumbing participated in the inspection. Reliable did not participate in the inspection. By May 25, 2021, LGI Forensic allegedly disposed of the sprinkler head, which is the subject of the instant motion.
Upon learning of the inspection, plaintiffs counsel spoke with Steve Piertopaolo, LGI Forensic's owner, who refused to produce Mr. Berryman for a deposition or to give any information regarding the inspection or disposal of the subject sprinkler head. Plaintiff then served a Subpoena upon LGI Forensic to inspect its files with respect to the subject sprinkler and to depose Mr. Berryman to inquire as to his personal knowledge of the handling of the subject sprinkler head. Plaintiff has served discovery demands on Crown Plumbing, Reliable, and GFP Real Estate, including supplemental omnibus demands pertinent to the care, custody, inspection, and testing of the sprinkler head.
Plaintiff now brings this discovery motion seeking multiple types of relief and orders to: (1) schedule a hearing on spoliation issues in regards to the subject sprinkler head, which has been lost or destroyed; (2) enforce the subpoena against non-party LGI Forensic Engineering, compelling production of documents and testimony; (3) compel all outstanding discovery from defendant and third-party defendants; and (4) grant plaintiff leave to file a third supplemental summons and third amended complaint pursuant to CPLR 3025 to join LGI Forensic as a necessary party.
Reliable partially opposes the motion. Reliable only opposes the portion of plaintiffs motion seeking a discovery response, asserting that it responded to plaintiffs discovery demands. Reliable also maintains that it did not attend or participate in the inspection of the subject sprinkler and that it provided to plaintiff the communications that it received concerning the inspection and subsequent request for production. Reliable takes no position on the request to enforce the subpoena, to have a spoliation hearing, or to file an amended complaint. In light of Reliable's position, at oral argument on October 31, 2023, plaintiff withdrew his motion to the extent it seeks relief from Reliable.
Crown Plumbing also partially opposes the motion to the extent plaintiff seeks to compel a discovery response, as Crown Plumbing maintains that it provided responses. Further, at oral argument, Crown Plumbing consented to supplement its disclosure regarding the sprinkler inspection because it acknowledged that it did send an expert to the inspection. Crown Pluming has no opposition to the portion of plaintiffs motion seeking a spoliation hearing, with its counsel noting that ".. .it appears particularly likely that there has in fact been specific spoliation of material evidence by a subpoenaed retained engineer, which clearly does materially prejudice all the parties in the case." See NYSCEF doc. no. 54 at 2. Nor does Crown Pluming oppose the portions of plaintiffs motion seeking to enforce the subpoena served upon LGI Forensic or granting plaintiff leave to file a third supplemental summons and complaint.
Lastly, GFP Real Estate partially opposes the motion. With respect to the outstanding discovery demands, GFP Real Estate represented to the Court that all of plaintiffs remaining demands will have been complied with by the time of full submission of the motion. However, GFP Real Estate opposes the part of plaintiff s motion that seeks to amend his complaint to include LGI Forensic and to add a cause of action for spoliation. GFP Real Estate argues that plaintiffs proposed additional cause of action is futile because New York does not recognize an independent cause of action for spoliation. Instead, GFP Real Estate maintains that a party seeking a remedy for spoliation should file a motion for sanctions.
"Spoliation occurs when a litigant disposes of crucial items of evidence involved in an accident before an adversary has an opportunity to inspect them." Solis v McDonald's Corp., 2010 N.Y. Slip Op. 32752[U] (Sup Ct, NY County 2010). "A party seeking sanctions based on spoliation of evidence must demonstrate that: (1) that the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a 'culpable state of mind'; and finally, (3) that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense." VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 A.D.3d 33, 45 (1st Dept 2012) (citations omitted); see also Ahroner v Israel Discount Bank of NY, 79 A.D.3d 481, 482 (1st Dept 2010). "The burden is on the party requesting sanctions to make the requisite showing." HMS Holdings Corp, v Arendt, 47 Misc.3d 1222(A) (Sup Ct, Albany County 2015).
Plaintiff has raised critical issues with respect to the preservation of the subject sprinkler head in this litigation. It is clear that the sprinkler head is central to the action. Further, there is no dispute that this litigation was pending at the time of the inspection, of which not all parties were made aware. To ascertain whether sanctions are appropriate, including, critically, if the records were destroyed with a "culpable state of mind," a spoliation hearing must be held. See e.g. Klein ex rel. Klein v Seenauth, 180 Misc.2d 213, 220 (Civ Ct, Queens County 1999) ( that "the Court finds that a 'spoliation hearing' is warranted under the circumstances herein to not only determine when the subject bicycle was discarded, but more particularly, to ascertain whether the plaintiffs were on notice that the evidence might be needed for future litigation.").
Therefore, a hearing is appropriate here, where the credibility of the witnesses must be evaluated to determine if plaintiff has met his burden in seeking sanctions and to determine what, if any, sanctions are appropriate. See HMS Holdings Corp, v Arendt, 42 Misc.3d 1222(A) (Sup Ct, Albany County 2015).
In addition to seeking a spoliation hearing, plaintiff moves for leave to file a third supplemental summons and third amended complaint pursuant to CPLR 3025 so that it may join LGI Forensic as a necessary party and add the cause of action for spoliation, by way of Judiciary Law § 773.
"Leave to amend a pleading pursuant to CPLR 3025 (b) is freely given, and will be denied only if there is 'prejudice or surprise resulting directly from the delay' in moving to amend, 'or if the proposed amendment is palpably improper or insufficient as a matter of law.'" Carrasquillo v Wilfred Realty Corp., 205 A.D.3d 516, 517 (1st Dept 2022), quoting McGhee v Odell, 96 A.D.3d 449, 450 (1st Dept 2012) (internal quotation marks omitted). To establish it is entitled to leave to amend under CPLR 3025 (b), a movant "need not establish the merit of its proposed new allegations...but simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit." MBIA Ins. Corp, v Greystone & Co., Inc., 74 A.D.3d 499, 500 (1st Dept 2010).
Plaintiff itself acknowledges that New York State does not recognize the independent tort of spoliation of evidence against a third party, as has occurred in this case. See NYSCEF doc. no. 39 at ¶ 12. However, plaintiff argues that Judiciary Law § 773[1] allows an action to be commenced against a third party who negligently breaches a duty to preserve evidence, even if such third party has no connection to the underlying lawsuit. In support of this proposition plaintiff cites to Ortega v City of New York, 9 N.Y.3d 69, 80 (2007). In opposition,...
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