Yager v. Thompson, 2003 NY Slip Op 51482(U) (NY 12/2/2003)
| Decision Date | 02 December 2003 |
| Docket Number | 40574/02-325D. |
| Citation | 2003 NY Slip Op 51482(U) |
| Parties | KENNETH YAGER and KATHLEEN YAGER, Plaintiffs, v. MICHAEL THOMPSON and CATHERINE THOMPSON, Defendants. |
| Court | New York Court of Appeals Court of Appeals |
Steven M. Lester, Esq., NY, for the Plaintiffs.
Epstein, Grammatico & Gann, Frankini & Marotta, NY, for the Defendants.
This is an action between next door neighbors in a quiet Bellmore neighborhood, involving an allegation of nuisance-by-bamboo a veritable plague of bamboo which the defendants allegedly unleashed upon the plaintiffs' property. As judicially determined in Shatto v. Hood, 1990 WL 300832 (Pa. Comm. Pl. 1990),
The defendants' primary assertion is that the plaintiffs have spoliated evidence by removing the bamboo from the plaintiffs' property, and therefore should have their complaint dismissed.
According to the plaintiffs, an expert informed them that bamboo roots will penetrate even concrete or steel. They removed the quickly spreading bamboo as an act of desperation, before it grew through their foundation, retaining wall, and swimming pool.
According to the defendants, however, the plaintiffs also removed the bamboo before the defendants had an opportunity to investigate and assess the situation, thus depriving the defendants of the ability to properly mount a defense.
The defendants' motion requires consideration of an aspect of the recently expanded spoliation doctrine which has been previously addressed by the courts of other states, but not directly in New York.
Beginning in 1993, the defendant began to backfill his backyard by adding materials from different construction sites, and bamboo appeared in areas where he had put the backfill. He let the bamboo grow along the fence line.
Plaintiff first noticed bamboo on his property in the mid 1990's. By approximately 1996, the plaintiff started removing some of the bamboo. Over the years the bamboo continued to grow in both height and area. The plaintiff spoke with the defendant several times through the years concerning the bamboo situation.
In April of 2002, a claims adjuster from the defendants' insurance company visited the plaintiffs' property to inspect and photograph the bamboo condition. The plaintiffs commenced this action in May 2002.
Defendants' counsel contacted plaintiffs' counsel by letter dated February 21, 2003 to obtain an inspection of the plaintiffs' premises. Plaintiffs' counsel responded by a faxed response dated February 26, 2003 that defendants' insurance adjuster could call to set up an appointment.
Two weeks later, on March 11, 2003, plaintiffs' counsel faxed another letter to defense counsel stating that he had not received a response to his fax of February 26, 2003. Counsel went on to notify defense counsel that, as a result of the "imminent threat" posed by the bamboo, plaintiffs "were required to remove the bamboo as soon as possible to mitigatge their damages," and therefore had scheduled remediation of the bamboo. The defendants were advised that their time to inspect the premises in its present condition was running out.
An inspection of plaintiffs' property was set for March 24, 2003. When defense counsel arrived at the plaintiff's home, however, he discovered that the bamboo had already been removed and placed in a dumpster in front of plaintiffs' house.
Defendants argue that the ten minute inspection of the plaintiffs' property by the insurance adjuster, in April 2002, prior to litigation, was not sufficient. Defendants point out that plaintiffs affirmatively contend that the bamboo continued to grow and spread during the pendency of this lawsuit. Consequently, the condition viewed by the adjuster was not the same condition which the plaintiffs had removed prior to the defendants' inspection.
Plaintiffs assert that they have provided a number of color photographs which show the condition and extent of the bamboo on the plaintiffs' property before remediation. Copies of invoices from the contractors who performed the remediation were also provided.
"Where a party destroys essential physical evidence and the party seeking that physical evidence is `prejudicially bereft of appropriate means to confront a claim with incisive evidence,' the spoliator may be sanctioned by the striking of its pleadings. New York Central Mutual Fire Insurance Co. v. Turnerson's Electric, Inc., 280 A.D.2d 652, 653 (2nd Dep't 2001), quoting DiDomenico v. C & S Aeromatik Supplies, 252 A.D.2d 41, 53 (2nd Dep't 1998) Spoliation was originally defined as the intentional destruction of evidence arising out a party's bad faith. See, Kirkland v. New York City Housing Authority, 236 A.D.2d 170,173 (1st Dep't 1997);Marvin Kagan, Inc. v. 625 Madison Avenue Associates, N.Y. Law Journal, December 8, 1998, at 26, col. 1 (Sup. Ct., N.Y. Co.) (Lebedeff, J.); Klein v. Seenauth, N.Y. Law Journal, April 30, 1999, at 34, col. 5 (Civ. Ct., Queens Co.) (Ritholz, J.). It has since been extended to include the non-intentional destruction of evidence. Id. However, there must still be evidence of negligence, i.e., a failure to exercise reasonableness in the preservation of the evidence. Id. See also, e.g., Heermance and Zeigler, Products Liability: Spoliation Summary and Update, N.Y. Law Journal, July 25, 2003, at 4, col. 4.
Thus, a claim of spoliation of evidence must be supported by a showing of bad-faith, if intentional; or unreasonable neglect, under all circumstances, if inadvertent. Popfinger v. Terminix International Company Limited Partnership, 251 A.D.2d 564 (2nd Dep't 1998) (). If the destruction was intentional, but was not in bad faith, no spoliation will be found. Id. See also, Greater New York Mutual Insurance Company v. Curbeon, 300 A.D.2d 182 (1st Dep't 2002) (). Accord, Minn-Chem, Inc. v. Richway Industries, Ltd.
, 2000 WL 1066529, at *1-2 (Ct. App. Minn. 2000).
Courts from other states addressing situations in which the destruction of evidence was, as in the instant case, necessary for purposes of mitigation, have declined to find spoliation.
In Martins v. Interstate Power Company, 2002 WL 534890 (Ct. App. Iowa), aff'd, 652 N.W.2d 657 (Sup. Ct. Iowa 2002), cert. den'd, 123 S.Ct. 1930 (2003), the plaintiff dairy farmers were awarded $700,000 by a jury in a nuisance action against the defendant electric utility. The action was brought after the plaintiffs' cows exhibited strange behavior, decreased milk production, increased somatic cell counts, and weight loss, allegedly attributable to stray electrical voltage produced by the defendant. The jury award was affirmed. The defendant asserted that during the pendency of the action, without notice to the defendant, the plaintiffs had moved the affected cattle and some electrical equipment to another farm (where the cattle soon recovered), thus depriving the defendant of the opportunity for its experts to test the cattle and equipment while t...
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