Squitieri v. City of New York

• Decision Date: 12 March 1998
• Citation: 248 A.D.2d 201,669 N.Y.S.2d 589
• Parties: , 1998 N.Y. Slip Op. 2117 Neil SQUITIERI, et al., Plaintiffs-Respondents, v. The CITY OF NEW YORK, Defendant-Respondent/Third-Party Plaintiff-Respondent, v. ELGIN, SUBSIDIARY OF FEDERAL SIGNAL CORP., Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 589

669 N.Y.S.2d 589

248 A.D.2d 201, 1998 N.Y. Slip Op. 2117

Neil SQUITIERI, et al., Plaintiffs-Respondents, v. The CITY OF NEW YORK, Defendant-Respondent/Third-Party Plaintiff-Respondent, v. ELGIN, SUBSIDIARY OF FEDERAL SIGNAL CORP., Third-Party

Defendant-Appellant.

[And A Second Third-Party Action]

Supreme Court, Appellate Division,

First Department.

March 12, 1998.

Ira H. Goldfarb, for Plaintiffs-Respondents.

Jay Douglas Dean, for Defendant-Respondent/Third-Party Plaintiff-Respondent.

Natasha L. Nordahl, for Third-Party Defendant-Appellant.

Before ROSENBERGER, J.P., and ELLERIN, WALLACH and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered on or about April 28, 1997, denying third-party defendant Elgin's motion for summary judgment dismissing the City's third-party complaint, unanimously reversed, on the law, without costs, the motion granted, and the third-party complaint dismissed. The Clerk is directed to enter judgment in favor of third-party defendant-appellant Elgin dismissing the third-party complaint.

Plaintiff Neil Squitieri is a city sanitation worker who was operating a street sweeper on the morning of January 27, 1984, when the cab filled with carbon monoxide fumes. The sweeper in question had been manufactured by third-party defendant Elgin and purchased by the City in 1979, through third-party defendant Burke, a distributor. The fumes rendered Squitieri unconscious until his co-workers found him and removed him several hours later. The carbon monoxide poisoning allegedly left him with serious chronic physical and psychological injuries for which he continues to undergo hospitalization and outpatient treatment.

On January 30, 1984, in an internal memo headed "For Litigation Purposes Only," the Department of Sanitation's safety officer informed the director of safety and training that the sweeper had undergone a carbon monoxide test and been found defective. The writer of the memo recommended that the sweeper be kept out of service until it was repaired.

Plaintiff commenced an action against the City in March 1985, alleging negligent maintenance and repair of the sweeper, and the City filed its answer. Yet in September 1985, though knowing that the sweeper was the subject of pending litigation against it, the City disposed of the sweeper, along with five others made by Elgin and six made by a different manufacturer.

The City then waited until 1993 to bring a third-party action against Burke, the distributor from whom it had bought the sweeper (not a party to this appeal) and only impleaded Elgin, the manufacturer, in 1994. As relevant to this appeal, the third-party complaint alleged that the sweeper had been defectively designed, and that this design defect, rather than the maintenance efforts of the Department of Sanitation, had caused the cab to fill with carbon monoxide.

Elgin and Burke then sought summary judgment dismissing the City's complaint, on the grounds that the City's spoliation of the evidence had severely impaired their ability to present a defense. The motion court denied the motion and cross-motion without prejudice to renewal at trial, stating that the motions were premature in light of outstanding discovery yet to be provided by third-party defendants. The court also found that dismissal was too severe a remedy because the sweeper was not essential to the action: a plaintiff may prove a design defect even in the absence of the product, based on design and specification documents exclusively in the manufacturer's possession.

Elgin now appeals from this order. For the following reasons, we reverse the order and dismiss the third-party complaint.

When a party alters, loses or destroys key evidence before it can be examined by the other party's expert, the court should dismiss the pleadings of the party responsible for the spoliation (Mudge, Rose, Guthrie, Alexander & Ferdon v. Penguin Air Conditioning Corp., 221 A.D.2d 243, 243, 633 N.Y.S.2d 493 [dismissing plaintiff's claim due to its "negligent loss of a key piece of evidence which defendants never had an opportunity to examine"] ), or, at the very least, preclude that party from offering evidence as to the destroyed product (Strelov v. Hertz Corp., 171 A.D.2d 420, 421, 566 N.Y.S.2d 646 [defendant precluded from presenting any evidence in defense of suit based on allegedly defective rental car, except as...