FREDERICK M. CIOFFI et al., Appellants-Respondents, v S.M. Foods, Inc., et al., Defendants, ATLANTA FOODS INTERNATIONAL et al., Respondents-Appellants, and RYDER TRUCK RENTAL, INC., Respondent. (And a Third-Party Action.) (Appeal No. 1.) FREDERICK M. CIOFFI et al., Appellants, v S.M. Foods, Inc., et al., Respondents, et al., Defendants. (And a Third-Party Action.) (Appeal No. 2.)
Appeal No. 1, Appeal No. 2
Supreme Court, Appellate Division, Second Department, New York
36 NYS3d 475
Mastro, J.P., Sgroi, Duffy and Brathwaite Nelson, JJ.
In an action to recover damages for personal injuries, etc., (1) the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated November 7, 2013, as granted those branches of the motion of the defendants Atlanta Foods International, Russell McCall’s, Inc., and Doug Jay which were to compel them to provide a supplemental expert witness disclosure and to respond to certain discovery demands, and denied those branches of their cross motion which were to strike the answer of those defendants and of the defendant Ryder Truck Rental, Inc., or, in the alternative, to preclude those defendants from offering certain evidence at trial, and the defendants Atlanta Foods International, Russell McCall’s, Inc., and Doug Jay, cross-appeal from so much of the same order as granted that branch of the plaintiffs’ cross motion which was to impose sanctions against them to the extent of directing that a negative inference charge be given against them at trial, and (2) the plaintiffs appeal, as limited by their brief, from so much of an order of the same court dated January 22, 2014, as denied those branches of their motion which were to strike the answers of the defendants Atlanta Foods International, Russell McCall’s, Inc., Doug Jay, and Ryder Truck Rental, Inc., or, in the alternative, to preclude those defendants and the defendant S.M. Foods, Inc., from offering evidence at trial regarding certain theories of liability.
Ordered that the order dated November 7, 2013, is affirmed insofar as appealed and cross-appealed from; and it is further,
Ordered that the order dated January 22, 2014, is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants Atlanta Foods International, Russell McCall’s, Inc., and Doug
On May 22, 2009, the plaintiff Frederick M. Cioffi (hereinafter the injured plaintiff), a police officer, allegedly was injured while he was conducting a traffic stop on foot when he was struck by a tractor trailer operated by the defendant Daniel E. Burke. The tractor trailer was owned by the defendant Ryder Truck Rental, Inc. (hereinafter Ryder). On September 19, 2008, the tractor trailer had been leased pursuant to a rental agreement to the defendant GFI Boston, LLC (hereinafter GFI), Burke’s employer. The injured plaintiff, and his wife suing derivatively, commenced this action against, among others, Ryder, GFI, Burke, and certain of GFI’s corporate parents and principals, namely, the defendants Atlanta Foods International, Russell McCall’s, Inc., and Doug Jay (hereinafter collectively the Atlanta defendants), to recover damages for personal injuries (see Cioffi v S.M. Foods, Inc., 129 AD3d 888 [2015]).
The Atlanta defendants moved, inter alia, to compel the plaintiffs to provide a supplemental expert witness disclosure and to respond to certain discovery demands. The plaintiffs cross-moved, inter alia, to strike the answers of the Atlanta defendants and Ryder or, in the alternative, to preclude those defendants from offering certain evidence at trial, or for other sanctions based upon their alleged failure to comply with disclosure orders and demands. In an order dated November 7, 2013, the Supreme Court granted those branches of the Atlanta defendants’ motion which were to compel the plaintiffs to provide a supplemental expert disclosure and other items, and granted that branch of the plaintiffs’ cross motion which was to impose sanctions against the Atlanta defendants to the extent of directing that a negative inference charge be given at trial against the Atlanta defendants based upon their destruction of certain electronic data. The court otherwise denied the plaintiffs’ cross motion. The plaintiffs appeal and the Atlanta defendants cross-appeal from this order.
The plaintiffs then moved, inter alia, to strike the answers of the Atlanta defendants and Ryder or, in the alternative, to preclude those defendants and the defendant S.M. Foods, Inc. (hereinafter S.M. Foods), from offering certain evidence at trial. In an order dated January 22, 2014, the Supreme Court denied those branches of the plaintiffs’ motion. The plaintiffs appeal from this order.
“ ‘[A] trial court is given broad discretion to oversee the discovery process’ ” (Maiorino v City of New York, 39 AD3d 601, 601 [2007], quoting Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [1999]; see Berkowitz v 29 Woodmere Blvd. Owners’, Inc., 135 AD3d 798, 799 [2016]). Thus, “[t]he supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed” (Berkowitz v 29 Woodmere Blvd. Owners’, Inc., 135 AD3d at 799 [internal quotation marks omitted]; see Gould v Decolator, 131 AD3d 445, 447 [2015]; Ligoure v City of New York, 128 AD3d 1027, 1028 [2015]; Daniels v City of New York, 117 AD3d 981 [2014]). Nevertheless, this Court is “vested with a corresponding power to substitute its own discretion for that of the trial court” (Peculic v Sawicki, 129 AD3d 930, 931 [2015]; see Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]; Brady v Ottaway Newspapers, 63 NY2d 1031, 1032 [1984]).
Turning first to that branch of the Atlanta defendants’ motion which was for additional disclosure in connection with the plaintiffs’ expert witness disclosure, a litigant is required to “identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert’s opinion” (
We turn next to those branches of the plaintiffs’ cross motion which were to strike the answers of the Atlanta defendants and Ryder or, in the alternative, to preclude those defendants from offering certain evidence at trial. The plaintiffs contended that these defendants’ answers should be stricken on the ground that they failed to comply with discovery demands and orders. Pursuant to
“Willful and contumacious conduct may be inferred from a
In this case, the record does not establish that the conduct of the Atlanta defendants or Ryder was willful or contumacious. In support of their request for sanctions, the plaintiffs point primarily to those defendants’ objections or their statements that items had already been produced or could not be found. Such statements cannot be characterized as willful resistance to discovery, nor can the objections, many of which were upheld by the Supreme Court, be considered evidence of a recalcitrant failure to participate in discovery. Furthermore, in the order dated November 7, 2013, the court made a careful and thorough inventory of the parties’ demands and responses, provided a particularized list of 18 categories of documents to which it found the plaintiffs were entitled, and identified which defendants were responsible for providing each category of documents. This examination of the parties’ discovery demands demonstrates the court’s attention to detail and its efforts to manage disclosure in a manner that was both just and fair. Therefore, the court providently exercised its discretion in determining that the drastic sanctions of striking the pleadings of the Atlanta defendants and Ryder, or precluding those defendants from presenting evidence at trial, were not warranted.
The plaintiffs also asserted that the Atlanta defendants’ answer should be stricken based upon their spoliation of certain evidence. “Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence” (Morales v City of New York, 130 AD3d 792, 793 [2015]; see
“ ‘The nature and severity of the sanction depends upon a number of factors, including, but not limited to, the knowledge and intent of the spoliator, the existence of proof of an explanation for the loss of the evidence, and the degree of prejudice to the opposing party’ ” (Morales v City of New York, 130 AD3d at 793, quoting Samaroo v Bogopa Serv. Corp., 106 AD3d 713, 714 [2013]; see Lentini v Weschler, 120 AD3d at 1201). “[T]he Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence” and may, “under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation” (Biniachvili v Yeshivat Shaare Torah, Inc., 120 AD3d at 606; see Doviak v Finkelstein & Partners, LLP, 137 AD3d at 846; Ortiz v Bajwa Dev. Corp., 89 AD3d 999 [2011]; Awon v Harran Transp. Co., Inc., 69 AD3d 889, 890 [2010]).
When the moving party is still able to establish or defend a case, a less severe sanction than striking a pleading is appropriate (see Morales v City of New York, 130 AD3d at 794; De Los Santos v Polanco, 21 AD3d 397, 398 [2005]; Iannucci v Rose, 8 AD3d 437, 438 [2004]). Furthermore, where the plaintiffs and the defendants are equally affected by the loss of the evidence and neither has reaped an unfair advantage in the litigation, it is improper to dismiss or strike a pleading on the basis of spoliation of evidence (see De Los Santos v Polanco, 21 AD3d at 398; Lawson v Aspen Ford, Inc., 15 AD3d 628, 629-630 [2005]).
The determination of the appropriate sanction for spoliation is within the broad discretion of the court (see Ortega v City of New York, 9 NY3d 69, 76 [2007]; Biniachvili v Yeshivat Shaare Torah, Inc., 120 AD3d at 606; Ortiz v Bajwa Dev. Corp., 89 AD3d at 999). This Court will substitute its judgment for that of the Supreme Court only if that court’s discretion was improvidently exercised (see Doviak v Finkelstein & Partners, LLP, 137 AD3d at 846; Morales v City of New York, 130 AD3d at 793; Samaroo v Bogopa Serv. Corp., 106 AD3d at 714).
Turning finally to the plaintiffs’ appeal from the order dated January 22, 2014, we find that the plaintiffs failed to demonstrate their entitlement to an order striking the answers of the Atlanta defendants and Ryder. Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs’ motion which was to strike those defendants’ answers (see Crystal Clear Dev., LLC v Devon Architects of N.Y., P.C., 127 AD3d at 913; Silberstein v Maimonides Med. Ctr., 109 AD3d at 814; Jennings v Orange Regional Med. Ctr., 102 AD3d at 656).
The parties’ remaining contentions are without merit.
Mastro, J.P., Sgroi, Duffy and Brathwaite Nelson, JJ., concur.