Verizon N.Y., Inc. v. Consol. Edison, Inc.

• Decision Date: 30 June 2014
• Docket Number: No. 101981/07.,101981/07.
• Citation: 997 N.Y.S.2d 102 (Table)
• Parties: VERIZON NEW YORK, INC., Plaintiff v. CONSOLIDATED EDISON, INC. and Consolidated Edison of New York, Inc., Defendants.
• Court: New York Supreme Court

997 N.Y.S.2d 102 (Table)

VERIZON NEW YORK, INC., Plaintiff
v.
CONSOLIDATED EDISON, INC. and Consolidated Edison of New York, Inc., Defendants.

No. 101981/07.

Supreme Court, New York County, New York.

June 30, 2014.

David E. Hoffberg, Esq., Pillinger Miller Tarallo, LLP, Elmsford, for Plaintiff.

William F. Tietjen, Esq., Consolidated Edison Co. of New York, Inc., New York, for Defendant.

Opinion

NANCY M. BANNON, J.

The plaintiff, Verizon New York, Inc. (“Verizon”), alleges in its complaint that on March 8, 2004, one of its underground telecommunications cables located at the corner of West 26th Street and Sixth Avenue in Manhattan was destroyed by a fire or “burnout” caused by the negligence of the defendants, Consolidated Edison, Inc. and Consolidated Edison of New York, Inc. (“Con Edison”). Con Edison denies responsibility and asserts in its defense that any damage to the cable was caused in whole or part by the plaintiff's own negligence, and by none of its own. The damaged cable, which was made of copper and installed in 1930, was salvaged by the plaintiff for scrap metal soon after the incident. The defendants now move to dismiss the complaint pursuant to CPLR 3212 based upon this spoliation of evidence and pursuant to CPLR 3126 based upon the plaintiff's failure to comply with numerous discovery demands and court orders. For the reasons stated below, the motion is granted.

“Spoliation is the destruction of evidence.” Kirkland v. New York City Housing Authority, 236 A.D.2d 170, 173, 666 N.Y.S.2d 609 (1st Dept.1997). “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” (Id. ) and after being placed on notice that such evidence might be needed for future litigation. See New York City Housing Auth.v Pro Quest Security, Inc., 108 A.D.3d 471, 970 N.Y.S.2d 21 (1st Dept.2013) ; Sloane v. Costco Wholesale Corp., 49 A.D.3d 522, 855 N.Y.S.2d 155 (2nd Dept.2008). The Supreme Court has “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 ... or employing an adverse inference instruction at the trial of the action.” Ortega v. City of New York, 9 N.Y.3d 69, 76, 845 N.Y.S.2d 773, 876 N.E.2d 1189 (2007) ; see CPLR 3126 ; Voom HD Holdings LLC v. Echostar Satellite LLC, 93 A.D.3d 33, 939 N.Y.S.2d 321 (1st Dept.2012) ; General Security Ins. Co. v. Nir, 50 A.D.3d 489, 858 N.Y.S.2d 18 (1st Dept.2008).

However, the sanction of dismissal of the complaint or answer is warranted where the alleged spoliation prevents the movant from inspecting a key piece of evidence which is crucial to the movant's case or defense (see Kirkland v. New York City Housing Authority, supra; Mudge, Rose, Guthrie, Alexander & Ferdon v. Penguin Air Conditioning, Inc., 221 A.D.2d 243, 633 N.Y.S.2d 493 [1st Dept.1995] ; Bach v. City of New York, 33 A.D.3d 544, 827 N.Y.S.2d 2 [1st Dept.2006] ) or has left the movant “prejudicially bereft' of the means of presenting their claim.” Kirkland v. New York City Housing Authority, supra at 174, 666 N.Y.S.2d 609,quoting Hoenig, Pruducts Liability, Impeachment Exception: Spoliation Update, NYLJ, Apr. 12, 1993, at 6, col 5); see Canaan v. Costco Wholesale Membership, Inc., 49 A.D.3d 583, 854 N.Y.S.2d 442 (2nd Dept.2008) ; New York Central Mutual Fire Ins. Co. v. Turnerson's Elec., 280 A.D.2d 652, 721 N.Y.S.2d 92 (2nd Dept.2001) ; Cohen Brothers Realty v. Rosenberg Elec. Contr., 265 A.D.2d 242, 697 N.Y.S.2d 20 (1st Dept.1999) ; see generally Ortega v. City of New York, supra; MetLife Auto & Home v. Joe Basil Chevrolet, 1 N.Y.3d 478, 775 N.Y.S.2d 754, 807 N.E.2d 865 (2004). That is the case here.

The proof before the court on this motion, including depositions of an employee of each party, shows that the plaintiff called the defendants to the location of the cable failure reporting a stray voltage problem but, after testing, the defendants found no stray voltage nor any sign of a fire or “burnout” damage caused by their equipment. Richard Chintalin, a Con Edison employee, testified that he responded to the location the morning after the incident upon receiving Verizon's report. The report did mention any fire and, indeed, the plaintiff does not dispute that no fire was reported to the New York Fire City Department. Using a volt meter, Chintalin tested all three manholes at that intersection, two belonging to Con Edison and one to Verizon, for stray voltage and found none. He went into Verizon's manhole but did not recall observing any damage to a Verizon cable or other facilities at that time. Nor could he identify photographs shown to him by the plaintiff's counsel at the deposition, purportedly of the damaged cable. Based on his findings, Chintalin deemed the site to be safe and reported this to the Verizon employees present, which included Dennis Hogan, who then went back into the manhole to work. Chintalin did not create any record of the testing since that is done only with a positive finding. Hogan's testimony mostly parallels that of Chintalin as to these events.

Thereafter, as described by Hogan at his deposition, the subject cable was simply “put in a scrap heap” by the time the repair work at the manhole was completed on March 31, 2004, and no testing of the cable was performed to determine what had occurred. The defendants were alerted to the destruction of the cable after being served with the summons and complaint.

As noted above, the defense theory is that the cable failed due to its age and condition, or some reason other than stray voltage and that a physical inspection of the cable could reveal the true cause. In an affidavit submitted by the defendants, James Freer, who had worked for Verizon for 30 years repairing and replacing damaged underground equipment, explained that a cable which fails due to a “burnout” looks different from a cable which fails due to electrolysis, age or some other cause. According to Freer, without an inspection, a determination cannot be...