Jones v. General Motors Corp.Jones v. General Motors Corp.
Appeal from an order of the Supreme Court (Ceresia, Jr., J.), entered April 10, 2000 in Rensselaer County, which, inter alia, denied plaintiffs motion to strike defendant’s answer and affirmative defenses.
Plaintiff was involved in a single vehicle accident in September 1987 after the 1988 Chevrolet Corsica (hereinafter the vehicle) that he was driving went off the road, into a ditch and overturned. He was ejected from the vehicle and suffered catastrophic injuries rendering him a paraplegic. Although he has no memory of how the accident occurred, plaintiff and others
In August 1990, defendant moved for summary judgment based on plaintiff’s response to its notice to admit in which plaintiff acknowledged that he did not have possession of the vehicle, he had not performed any expert examination of the vehicle and he had no memory of the accident. Supreme Court (Travers, J.) granted defendant’s motion and dismissed the complaint, finding that plaintiff had failed to raise a triable issue of fact regarding the cause of the accident. At that time defendant had not disclosed that its attorneys were in possession of the vehicle, nor that its expert had conducted an examination of the vehicle. Plaintiff subsequently retained new counsel who discovered that defendant’s attorneys owned the vehicle and, in 1992, moved for reconsideration of Supreme Court’s decision awarding summary judgment in favor of defendant. Supreme Court denied the motion and this Court, in July 1992, reversed (
Turning to the order on the instant appeal, in October 1998 — 11 days prior to the commencement of trial — plaintiff moved for, inter alia, an order striking defendant’s answer and affirmative defenses based on spoliation of evidence. In a comprehensive and painstaking decision, Supreme Court denied the motion, finding that plaintiff had failed to establish that the alteration to the hood latch mechanism occurred while the vehicle was under defendant’s control and also finding that the alteration or lifting of the crushed roof line — which had occurred after defendant’s attorneys took possession of the vehicle — was not shown to be crucial to the reconstruction of the accident or so prejudicial to plaintiffs case as to warrant disposal of the action other than on the merits. The court, however, assessed a sanction in the sum of $10,000 against
We affirm. It is well settled that “courts have discretion to impose sanctions under CPLR 3126 when a party intentionally, contumaciously or in bad faith fails to comply with a discovery order or destroys evidence prior to an adversary’s inspection” (Puccia v Farley,
As a starting point, it appears to be undisputed that the hood latch mechanism was altered sometime between October 1987 when Suprise photographed the vehicle and May 1990 when photographs were taken by defendant’s investigator, Bruce Bowman. Inasmuch as plaintiff retained ownership of the vehicle for a portion of that 2
We find merit in plaintiff’s assertion that Supreme Court erred in requiring that plaintiff “conclusively” establish that spoliation of the hood latch occurred at the hands of defendant. To be distinguished from this case, the higher “conclusive evidence” standard has been loosely employed — although not defined or fully explained — to characterize a movant’s burden in establishing the willfulness of a proven or conceded spolia
With regard to the spoliation of the vehicle’s crushed roof line, the record demonstrates that the alterations occurred while it was in defendant’s possession and control, a fact defendant does not dispute. As such, we turn to the very troubling and close issue of whether defendant’s spoliation of the roof warranted the ultimate sanction of striking defendant’s answer. Absent evidence of willful or contumacious behavior on the part of the spoliator, “courts will look to the extent that the spoliation of evidence may prejudice a party and whether a dismissal will be necessary as ‘a matter of elementary fairness’ ” (Puccia v Farley, supra, at 85, quoting Kirkland v New York City Hous. Auth., supra, at 175 [internal quotation marks omitted). “In the final analysis, the trial court’s determination will remain undisturbed absent a clear abuse of discretion” (Hartford Fire Ins. Co. v Regenerative Bldg. Constr., supra, at 863-864 [citations omitted]). Here, a review of the various expert affidavits indicates that — in addition to the examination of the vehicle itself — reconstruction of the accident in this case involves, inter alia, the evaluation of plaintiff’s medical condition, the physical evidence present at the scene, observations of witnesses who arrived at the scene, photographic history of
Crew III, J. P., Peters, Mugglin and Lahtinen, JJ., concur. Ordered that the order is affirmed, without costs.
Notes
. Plaintiff also appealed from Supreme Court’s denial of his motion to amend his complaint to add a cause of action for punitive damages and challenging the adequacy of the sanction imposed upon defense counsel. Plaintiff, however, has failed to address these issues in his brief before this Court and, accordingly, we deem any challenge to Supreme Court’s order in this regard to have been abandoned (see, Matter of Lehigh Portland Cement Co. v Assessor of Town of Catskill,
. We find the conclusory statement of Robert West, that the vehicle did not sustain any damage from the time that he towed it from the accident scene until the time that it left his facility in the hands of MIC, to be insufficient to establish that the hood latch had not been tampered with or damaged during that period of time.