Ortega v. City of New York

• Decision Date: 16 October 2007
• Docket Number: 118.
• Citation: 9 N.Y.3d 69,876 N.E.2d 1189
• Parties: Castalia ORTEGA et al., Appellants, v. CITY OF NEW YORK, Respondent.
• Court: New York Court of Appeals Court of Appeals

876 N.E.2d 1189

9 N.Y.3d 69

Castalia ORTEGA et al., Appellants, v. CITY OF NEW YORK, Respondent.

118.

Court of Appeals of New York.

October 16, 2007.

Trief & Olk, New York City (Barbara E. Olk of counsel), for appellants.

Michael A. Cardozo, Corporation Counsel, New York City (Scott Shorr and Barry P. Schwartz of counsel), for respondent.

David L. Darwin, County Attorney, Goshen, for County of Orange and another, amici curiae.

J. Wade Beltramo, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae.

OPINION OF THE COURT

GRAFFEO, J.

In this case we address an issue left open in MetLife Auto & Home v. Joe Basil Chevrolet, 1 N.Y.3d 478, 775 N.Y.S.2d 754, 807 N.E.2d 865 (2004): whether New York recognizes the tort of third-party negligent spoliation of evidence. We conclude that the tort is not cognizable in this state.

In October 2003, plaintiff Castalia Ortega purchased a 1987 Ford minivan from a private owner. She then brought the vehicle to a licensed service station for an inspection and tune-up. The day after the vehicle was serviced, while Ortega and plaintiff Manuel Peralta were traveling on Ocean Parkway in Brooklyn, Ortega smelled fumes and pulled the minivan to the side of the road. The van burst into flames, causing Ortega and Peralta to suffer severe burns.

The New York City police officers who investigated the accident contacted Ridge Transport Systems, a towing contractor, to remove the vehicle from the roadway. Ridge towed the van to its facility in Brooklyn where it remained until November 7, 2003, when it was transported to the New York City Police Department's College Point Auto Pound in Queens. Peralta's attorney attempted to inspect the vehicle while it was in Ridge's possession but was refused access because Peralta did not own the vehicle and could not produce a title document or bill of sale. Ridge explained that the van would be destroyed if not claimed by its rightful owner.

On October 31, 2003, Peralta commenced a special proceeding against Ridge and the New York City Police Department by order to show cause seeking to preclude destruction of the vehicle until it could be inspected by Peralta. Neither Ridge nor the police department opposed the application. Supreme Court issued an order on November 18, 2003 granting Peralta a period of 60 days to inspect the vehicle and precluding its alteration or destruction until completion of the inspection. The preservation order was served on Ridge and the police department. The Legal Bureau of the police department promptly forwarded a written request, along with a copy of the court order, to the property clerk at College Point Auto Pound directing preservation of the vehicle pending Peralta's inspection.

For unknown reasons, the memo and order were either not received by the property clerk or were not properly acted upon. Instead of preserving the minivan as directed by Supreme Court, the Pound followed its ordinary procedures for the disposition of unclaimed vehicles. When the vehicle had arrived at the Pound, a Department of Motor Vehicles ownership check was conducted that revealed two owners: plaintiff Castalia Ortega and the person who sold the car to Ortega. On November 19, 2003, form letters were sent to both individuals by certified mail advising that if the owner did not contact the Pound within 15 days, the vehicle would be deemed abandoned under Vehicle and Traffic Law § 1224 and would be destroyed. The Pound received a signed return receipt from the former owner. However, the letter to Ortega, which had been directed to the address supplied on the police accident report, was returned for insufficient address. Because neither person contacted the Pound within the designated time period, the vehicle was placed in a salvage auction on December 10, 2003 and crushed for scrap metal on December 30, 2003. The Legal Bureau of the police department — which had attempted to assist Peralta's attorney in his efforts to enforce the preservation order — did not learn of the van's destruction until February 2004, at which point it notified Peralta and the court of the Pound's disposition of the vehicle.

Ortega and Peralta did not pursue a personal injury action against the Ford Motor Company, as manufacturer of the vehicle, the previous owner or the service station that had inspected the van. Instead, in July 2004, plaintiffs commenced this action against the City of New York seeking compensation for the personal injuries they sustained as a result of the automotive fire. Plaintiffs asserted two theories of recovery. First, they claimed that the City should be held liable for all damages stemming from the fire because, by destroying the vehicle, the City had breached its duty to preserve evidence, thereby committing the tort of negligent spoliation of evidence. Second, they claimed that by violating the preservation order, the City was guilty of civil contempt, rendering it liable for any damages flowing from its disregard of the court order. The City answered, asserting that plaintiffs had failed to state a cause of action for which relief could be granted and further generally denied the allegations of negligence.

Plaintiffs moved for summary judgment on liability as to both the negligent spoliation of evidence and contempt causes of action. In support of the motion, plaintiffs submitted the affidavit of an accident reconstruction expert who opined that the destruction of the vehicle and resultant inability of plaintiffs to inspect it presented a fatal obstacle to determining the cause of the fire or identifying the responsible parties. As a result of the City's negligence plaintiffs contended they were precluded from recovering damages from any of the tortfeasors who were ultimately responsible for their injuries.

The City opposed the motion, alleging that the negligent spoliation of evidence claim was inherently speculative because inspection of the vehicle might not have revealed the cause of the fire, and that destruction of the vehicle did not necessarily preclude a viable lawsuit against the true tortfeasors. The City's expert, an automotive engineer, concluded that other methods of investigation — including the review of product design, recall information, previous lawsuits, service records and the like — might have revealed circumstantial evidence regarding the cause of the fire sufficient to support a lawsuit against the vehicle manufacturer, previous owner or the service station that inspected the vehicle.

In resolving plaintiffs' application, Supreme Court addressed whether New York recognizes negligent spoliation of evidence as an independent tort. Although it acknowledged that the tort was problematic due to the speculative nature of the causation and damages elements, the court concluded that plaintiffs stated a cognizable claim. The court nonetheless dismissed plaintiff Ortega's spoliation cause of action because she had not been a party in the special proceeding that resulted in the preservation order and therefore had not established that the City breached a duty owed to her. Peralta's motion for partial summary judgment was denied because the court found that factual issues warranted a trial. Finally, the court dismissed the contempt claim, reasoning that contempt should be adjudicated by the court that issued the preservation order within the context of the special proceeding — not by the commencement of separate litigation before a different judge.¹

On the plaintiffs' appeal, the Appellate Division agreed that Ortega's negligent spoliation of evidence cause of action was not viable and, after searching the record, held that Peralta's claim was also not supportable, thereby modifying the order to grant the City summary judgment dismissing that claim as well. We granted plaintiffs leave to appeal and now affirm.

When parties involved in litigation engage in the destruction of evidence, a number of remedial options are provided by existing New York statutory and common law. Under CPLR 3126, if a court finds that a party destroyed evidence that "ought to have been disclosed . . ., the court may make such orders with regard to the failure or refusal as are just." New York courts therefore possess broad discretion to provide proportionate relief to the party deprived of the lost evidence, such as precluding proof favorable to the spoliator to restore balance to the litigation, requiring the spoliator to pay costs to the injured party associated with the development of replacement evidence, or employing an adverse inference instruction at the trial of the action (see e.g. Dorsa v. National Amusements, 6 A.D.3d 652, 776 N.Y.S.2d 583 [2d Dept.2004]; Ifraimov v. Phoenix Indus. Gas, 4 A.D.3d 332, 772 N.Y.S.2d 78 [2d Dept.2004]; Hulett v. Niagara Mohawk Power Corp., 1 A.D.3d 999, 768 N.Y.S.2d 535 [4th Dept.2003]). Where appropriate, a court can impose the ultimate sanction of dismissing the action or striking responsive pleadings, thereby rendering a judgment by default against the offending party (see e.g. Standard Fire Ins. Co. v. Federal Pac. Elec. Co., 14 A.D.3d 213, 786 N.Y.S.2d 41 [1st Dept. 2004]; Puccia v. Farley, 261 A.D.2d 83 699 N.Y.S.2d 576 [3d Dept.1999]; Kirkland v. New York City Hous. Auth., 236 A.D.2d 170, 666 N.Y.S.2d 609 [1st Dept. 1997]).²

In light of the various remedies available to trial courts, we noted in MetLife that "[o]ne traditional method of dealing with spoliation of evidence in New York has been CPLR 3126 where sanctions, including dismissal, have been imposed for a party's failure to disclose relevant evidence" (1 N.Y.3d at 482-483, 775 N.Y.S.2d 754, 807 N.E.2d 865). We were asked in MetLife to recognize negligent spoliation of evidence as an independent tort giving rise to consequential damages but we found it unnecessary to determine whether the tort was viable because the plaintiff in that action had failed to establish a fundamental element —...