New York Civil Law

New York Appellate Division, First Judicial Department Grants Spoliation Sanctions for Destroyed Personal Journal

The plaintiff or defendant in your case destroyed a piece of evidence you deem essential to your case. You liken the spoliation to Arthur Andersen shredding documents for Enron and seek the ultimate sanction of dismissal of the case (plaintiff's spoliation) or striking the answer (defendant's spoliation). New York courts have a different idea, though.

In a recent New York Appellate Division, First Department appeal -- Clarke v Povella -- the spoliation was substantial. In Clarke, the plaintiff commenced a lawsuit against defendants concerning a motor-vehicle/pedestrian accident. The plaintiff alleged emotional and psychological injuries from the accident.

Through the plaintiff's deposition, the defendants learned that the plaintiff kept a private journal. At the deposition, the defendant requested production of the journal. The plaintiff's attorney apparently did not move for a protective order to quash the demand. The plaintiff allegedly claimed she lost the journal, giving vague reasons why she did not preserve the journal once the defendant requested production of it.

The First Department concluded that the defendant's demand for the journal was not beyond the scope of disclosure, disagreeing with the trial court. The First Department reasoned that the journal was discoverable material even though it contained private information, noting that the plaintiff put her emotional and psychological state at issue and the journal could shed light on those allegations.

Notably, the First Department cited to the New York Court of Appeals' decision in Forman v Henkin, which discussed discovery as it applied to social media and, in particular, Facebook. Citing Forman, the First Department noted that the defendants were not required to meet any special threshold burden to maintain the journal. The Court's point being that New York's discovery rules are broad and material will be subject to discovery where there is a showing that it is likely to lead to "material and necessary" information.

The First Department held that spoliation sanctions were warranted because the plaintiff had an obligation to preserve the journal once the defendants demanded it during the plaintiff's deposition; the Court stated that the plaintiff was grossly negligent in failing to preserve the journal. Nevertheless, the Court concluded that an adverse inference jury charge was more appropriate -- i.e., a charge that the contents of the journal likely would have been relevant to the plaintiff's emotional and psychological claims. Choosing to not impose the ultimate sanction, the Court reasoned that the defendants had access to information on her psychological health through authorizations to the plaintiff's psychological treatment. The Court also reasoned that the plaintiff testified about her psychological health at her deposition. 

The lesson in Clarke is an attorney should immediately move for a protective order when he or she deems a discovery request is beyond the scope of discovery. For a non-spoliating party, you can surely ask for the ultimate sanction but know that the court will make all efforts to fashion a remedy that punishes the spoliating party and still allows the case to be decided on the merits.

Photo Credit: Sh4rp_i

(40 years ago this week, Daryl Hall and John Oates were halted at No. 3 on the Billboard 100 for the pulsating pop hit, "Maneater.")

Wrecks, Lies, and Videotape - Two Recent New York Appellate Division Cases Consider Video Record Evidence on Summary Judgment Motions

What do Buggles, George Orwell, Pappas v New York City Tr. Auth. , and Zhong v Matranga have in common? They all recognize the impact of the medium of video.

As technology has advanced in the last ten years, so has the ubiquity of video recordings in our daily lives. Videos aren’t just for Youtube, Tik Tok, and Instagram posting. The medium has found its way into summary judgment motions, too. The decisions in Zhong and Pappas are two recent examples of the power of video recordings.

The facts in Pappas show that, without a video recording, the case would have been a garden-variety motor-vehicle accident with conflicting testimony. The personal-injury action stemmed from a rear-end collision in which the defendant bus driver rear-ended the vehicle the plaintiff George Pappas was driving. George’s wife Donna was a passenger in the car. Both plaintiffs separately testified that they had been stopped for 5 to 10 seconds when the bus struck them from the rear without warning. George testified that he had stopped the vehicle because the traffic light was red.

The bus driver told a different story. He testified at his deposition that the accident occurred because the plaintiffs’ vehicle moved into the bus’s lane in front of the bus. Without warning, the plaintiffs abruptly stopped in front of the bus even though a green light was is in their favor.

The defendants (the bus driver and the owner of the bus) moved for summary judgment to dismiss the negligence action based on the emergency doctrine. Considering the conflicting testimony, the Second Department noted that, without more, triable of issues existed on how the accident happened and who was at fault. The Second Department further noted, however, that the bus surveillance video, which the defendants submitted in support of their motion, eliminated any triable issues of fact. The Court noted that the video recording supported the bus driver’s version of how the accident happened, concluding that the bus operator was confronted with an emergency not of his own making and was left with “virtually no opportunity to avoid a collision . . . .” Accordingly, the Court affirmed Supreme Court’s grant of summary judgment dismissing the complaint.

The video recording in Zhong had an equally damaging result on a motion for summary judgment. The case concerned a bicycle/pedestrian accident. The defendant in Zhong was riding his bicycle in New York City. The collision with the plaintiff pedestrian happened as the defendant was riding his bicycle with the right-of-way through an intersection. He traveled in the marked bicycle lane at a speed of approximately 14 miles per hour, well within the posted speed limit and within the average cruising speed for bicycle traffic proceeding through the intersection.

The accident happened when the plaintiff suddenly entered the marked bicycle lane against a red light for pedestrian traffic and within a few feet of the defendant. The defendant testified at his deposition that when the plaintiff took two steps into the bicycle lane, he (1) “immediately braked and yelled ‘watch out’”; collided with her in the middle of the bicycle lane approximately two seconds later; (3) didn’t have time to stop, change lanes or go around the plaintiff; and (4) jammed on the brakes and yelled at the plaintiff.

The defendant moved for summary judgment, proffering an expert affidavit in which the expert opined on he numerous reasons why the defendant was not negligent. In opposition, the plaintiff also proffered an expert affidavit in which the expert opined that even if the defendant was traveling under the speed limit, he was still negligent because the defendant bicyclist was traveling much faster than the three other bicyclists riding near him. Without a video, this would have been one of those battle-of-the-experts situations where the non-movant raised triable issues of fact to defeat a summary judgment motion.

The parties had proffered a copy of a video of the intersection that captured the incident. The video was the deciding factor in the case. The First Department concluded, “There is only one version of the accident: the one shown in the video, described in [the] defendant’s testimony, and corroborated by [the] plaintiff.” Granting the defendant’s summary judgment motion, the Court reasoned that the video showed that the plaintiff (1) did not look in the direction of the defendant, (2) could not state the distance between her and then defendant when she stepped off the curb, (3) did not remember being struck by the bicycle, and (4) only remembered someone yelling “watch out” while “very, very close” to her right ear. The First Department noted that the plaintiff’s testimony synced with the defendant’s testimony that the plaintiff darted out onto the bicycle’s path when he was within a few feet from her.

The First Department concluded that the plaintiff failed to raise an issue of fact, noting there was no evidence that the defendant operated his bicycle at an excessive rate of speed, in a negligent manner, or without due care to avoid colliding with any pedestrian.

For plaintiffs and defendants alike, the Pappas and Zhong decisions are reminders remind to request all available, relevant video recordings in their respective discovery demands. Early investigation of an accident will help attorneys unearth recordings of the relevant accident or incident. As the Pappas and Zhong decisions demonstrate, a video recording can mean the difference between a dismissal and going to trial with conflicting fact and expert witness testimony.

Thank you to my partner Brendan Fitzpatrick for bringing these cases to my attention.

(40 years ago this week, the Australian band Men at Work was fighting its way up the Billboard 100 charts with the No. 12 song, "Who Can It Be Now?" Cue the obligatory but awesome saxophone solo)

New York Appellate Division, First Department Addresses Spoliation of Evidence

Spoliation of evidence is an interesting issue. The Appellate Division, First Department recently worked through interesting issues in a product liability case -- Rossi v Doka USA, Ltd. The lesson to both parties is "spoliation" isn't a magic word you say and expect a dispositive result.

The details of the plaintiff's work as a carpenter on a worksite are important to understand the design defect claim against Doka USA Ltd. Plaintiff was injured while installing concrete walls at a building. The walls were created using a reusable form system distributed to the plaintiff's employer by Doka.

Doka's system employed tracks, so that a form could be filled with concrete, pushed into place along the track, and then pulled out again once the concrete had set. The form was moved back and forth on the track by use of a ratchet, approximately three feet in length, that attached to a bolt. Doka supplied the ratchets to the plaintiff's employer. The plaintiff testified at his deposition that the ratchets frequently broke, and he remembered this happening at least 10 times. In a December 2010 email, approximately one month before the accident, a Doka employee told two other employees that he had been informed that there were several defective ratchets at the work site at issue.

The forms sometimes were difficult to move. The plaintiff claimed that he and his fellow workers were trained to apply as much force to the ratchet as necessary when the forms were difficult to move. The plaintiff serious injured his knee when he used his right foot to apply as much pressure on the ratchet as possible to move a difficult to move form. The plaintiff did not know whether the ratchet was new, or whether it had any particular marking on the labels on it. Based on past experience, the plaintiff claimed he was certain that the ratchet he was using was a Doka ratchet because it had come in a package that contained other Doka materials.

Immediately after the accident, the plaintiff went to a medic on the worksite. He did not know what happened to the ratchet after the accident, and the ratchet has never been recovered.

The plaintiff commenced the personal-injury action two years after the accident. Doka served a notice of inspection demanding the plaintiff produce the ratchet at issue. In response, the plaintiff admitted he did not possess the ratchet.

The plaintiff served a discovery demand seeking emails about any complaints of defective or malfunctioning Doka ratchets. Doka claimed to have searched for emails responsive of the plaintiff's demand  and failed to identify any emails. One year after the plaintiff commenced the action, Doka replaced its email system company wide. Any emails predating the replacement became irretrievable.

Doka moved for spoliation sanctions, arguing the missing ratchet at issue entitled Doka to the dismissal of the complaint. The plaintiff cross-moved to strike Doka's answer for the alleged spoliation of relevant emails. Supreme Court granted Doka's motion and dismissed the complaint as against it.

The First Department considered Doka's motion by parsing the requirement to obtain sanctions for spoliation -- i.e., a party must establish (1) that the non-moving party had an obligation to preserve the item in question, (2) that the item was destroyed with a "culpable state of mind," and (3) that the destroyed item was relevant to the party's claim or defense.

The Court questioned whether the plaintiff should be held responsible at all for the missing ratchet because the accident happened at a major construction project, noting those work sites are "chaotic" under the best conditions. The Court made a practical observation -- i.e., the plaintiff was focused on his injuries and not preserving the ratchet for future litigation.

The First Department also noted an important point on spoliation in defective design cases -- i.e., whether the missing product truly frustrated Doka's ability to provide a defense. The Court pointed out that there were multiple ratchets at the worksite when the accident happened and, to the extent any ratchets still existed, an expert could have tested one or several. It also noted that the simplicity of the tool distinguished the case from other design defect cases where the court dismissed the action based on spoliation because of the complexity of the product's design.

Most important, the Court noted that Doka did not argue in any meaningful way why its inability to inspect the subject ratchet prevented it from defending against the products liability claim. This is an important point. A party can't utter "spoliation" and expect a drastic remedy. The Court also shut down Doka's speculative argument that it could not be sure that the subject ratchet was a Doka ratchet. The record was clear, even from Doka's witnesses, that it was responsible for the ratchets that were available at the worksite. Also, Doka did not identify any other possible entities which could have made the ratchets available to the plaintiff and his fellow workers. Accordingly, the Court concluded that the record did not support that Doka was prejudiced by the absence of the ratchet and Supreme Court should not have penalized the plaintiff and certainly should not have resorted to the drastic remedy of dismissing the complaint.

The First Department also rejected the plaintiff's spoliation claim. The Court concluded that the plaintiff was speculating that Doka's email servers could have held emails that could have assisted him in establishing his design defect claim. The one relevant email that Doka produced to the plaintiff was generated one month before the accident and two-and-a-half years before the plaintiff commenced the action. The Court stated, "There is no way of knowing whether the email, and any emails responding to it, were deleted outside course of Doka's business operations. It concluded that the plaintiff had not carried his burden of establishing that there were still emails on the served when Doka switched its email provider and that were relevant to his claim.

This case is a great addition to the spoliation caselaw.

New York Court of Appeals Will Hear Oral Argument Today Re: Whether Verified Pleading Suffices to Raise Issue of Fact on Summary Judgment

The New York Court of Appeals will hear oral argument today in Sanchez v. Nat'l R.R. Passenger Corp., among other appeals (here is the summary). The case addresses an interesting issue concerning evidentiary proof in a summary judgment motion. The appeal turns on when the plaintiff's accident occurred; there is a statute of limitations issue here. At her deposition, the plaintiff could not recall the exact date of her accident. An accident report places the accident at an earlier date than the date the plaintiff alleges in her verified pleadings. 

The Court will address whether, even in the face of the plaintiff's deposition testimony, her verified pleading can raise a material issue of fact regarding the date when the accident occurred and, as such, when her claim accrued for statute of limitations purposes.

New York Evidence/New York Court of Appeals Grants Motion for Leave to Appeal - Secondary Evidence

Clarke v. Rodriguez (Motion for leave to appeal granted on Nov. 23, 2010)

73 A.D.3d 677 (2d Dep’t 2010)

 Trial attorneys will want to follow this appeal concerning a point of a little-discussed exception to the best evidence rule.  The appeal concerns the admission of secondary evidence.  A proponent of an written instrument who is unable to produce the paper because it is under the control of the opponent may produce secondary evidence of what is contained in the original instrument.

 The defendant appealed a Supreme Court judgment that, after a nonjury trial, was in favor of the plaintiff and against him directing specific performance for the sale of real property.  Supreme Court allowed the plaintiff to submit secondary evidence of the contents of the original contract of sale.  The Second Department concluded that the plaintiff sufficiently explained the unavailability of the primary evidence -- i.e., the contract of sale for the real property.  The plaintiff established that the defendant’s former attorney, who did not testify at the trial, possessed the original contract of sale.

 The Court will revisit its holding in Schozer v. William Penn Life Ins. Co. of N.Y., 84 N.Y.2d 639 (1994). 

 

New York Court of Appeals Grants Leave to Appeal Regarding Emergency Doctrine Instruction

Last week, the New York Court of Appeals granted leave to appeal in Lifson v. City of Syracuse.  The issue likely to be decided is whether a trial court can instruct a jury on the emergency doctrine where the evidence does not support that a weather or lighting condition was sudden or unforeseen.

In Lifson, the defendant driver injured the decedent pedestrian after striking her with his motor vehicle.  The defendant stopped at a stop sign at the intersection in question.  He looked to the left and to the right and the proceeded to make a left turn.  The defendant claimed that, as he was in the process of making the left turn, his vision was momentarily obstructed by sun glare.  He took his eyes off the road and, when he looked back up again, he observed decedent approximately one foot in front of his vehicle.  The defendant "slammed" on the brakes but was unable to avoid hitting the decedent.

The Fourth Department Majority concluded, among other things, that the trial court did not err by giving an emergency instruction with respect to the assertion of the defendant that he failed to observe the decedent because he was blinded by sun glare.  The Court reasoned that there was a reasonable view of the evidence establishing that the sun glare was a sudden and unforeseen circumstance justifying the emergency instruction.

Justice Peradotto dissented, noting that she agreed with the plaintiff that Supreme Court erred in giving an emergency instruction with respect to the assertion of the defendant that he failed to observe the decedent because he was blinded by sun glare.  Justice Peradotto noted that the defendant never testified at trial that he was unaware that the sun was out or that he did not expect to be driving into the sun when he turned left to travel west.  

Justice Peradotto concluded that

[The] defendant should have anticipated the possibility that he might encounter glare from the sun when he began to turn his vehicle to travel west into the setting sun.  Because the condition defendant faced was not unexpected in light of the sunny weather and the time of day, [the] defendant was not entitled to the benefit of an emergency instruction.

New York Civil Law will keep you apprised of the developments on this appeal 

Appellate Division, First Department Addresses Confidential Settlement Agreement Issue

The Appellate Division, First Department in Osowski v. AMEC Constr. Mgt., Inc. addressed a confidential settlement agreement between the plaintiffs and the defendants.  The plaintiffs and defendants entered into a settlement agreement to perform an end-run around a contractual waiver of subrogation contained in an Owner Controlled Insurance Program.  The opinion concerns issues surrounding the disclosure of confidential settlement agreements and the importance of forthrightness where the court orders disclosure.

New York Court of Appeals Will Hear Oral Arguments on The Scope of Expert Witness Testimony

On September 10, 2009, the New York Court of Appeals will hear oral arguments in Salm v. Moses.  The underlying Appellate Division, First Department doesn't have much to it.  The appeal addresses whether the trial court properly limited the cross-examination the defendant's expert by precluding inquiry into the fact that he and the defendant were insureds and shareholders in the same dental malpractice insurance company.  The Court of Appeals will likely address the standard that the First Department applied -- i.e., whether the trial court "achieved a fair balance between the plaintiff['s] right to attack the expert witness's credibility and the prejudicial effect of introducing the fact of [the defendant]'s insurance coverage".

New York Civil Law will keep you apprised on the decision.

New York Court of Appeals Determines Case Regarding Foundation of Expert Opinion

Butler v. City of Gloversville provides another case in which an expert did not support his conclusion with a proper foundation.  The New York Court of Appeals concluded that the defendant's expert did not support his conclusion that the plaintiff would have been injured even if other ground covering on the subject playground was present.

Since New York is a Frye state, I wish that there were more detailed decisions on the threshold Frye instead of the foundation issue.

Quick Post About Admissibility of Accident Report

Nunez v.  Levy is an interesting Labor Law case that contains an issue regarding the admissibility of  an accident report.  The defendants attempted to preclude the admission of the post-accident report into evidence because, among other things, it addressed opinions about post remedial repairs or measures.  Supreme Court, New York County held that the report was admissible, describing it as a post-accident evaluation of what caused the accident and how it occurred.