OPINION OF THE COURT
Dеfendant Yeshiva University (Yeshiva) moves to dismiss plaintiff’s causes of action sounding in negligent and intentional spoliation of evidence (i.e., destruction of evidence) on the ground that this jurisdiction does not recognize spoliation аs a cognizable tort action.
Plaintiff Susan Weigl was employed by Yeshiva as a laboratory technician. Among her duties was assisting professors and preparing materials for use by its instructors in conducting laboratory experiments during the course of teaching students. Yeshiva provided plaintiff with a laboratory coat for the performance of her duties.
On October 31, 1989, while plaintiff was in her laboratory coat preparing materials for a classroоm demonstration, an accident occurred. The preparation of the experimental material allegedly ignited plaintiff’s laboratory coat engulfing her in flames. As a result of this accident, plaintiff suffered extensive burns about her upper torso including her hands and limbs. Plaintiff was transported by ambulance to the New York Hospital burn unit where she remained for IV2 months.
Plaintiff asserts that during her hospitalization she underwent multiple surgical procedures including many skin grafts and that she is presently horribly scarred and disfigured and suffers from constant pain because of contractures of her skin.
Approximately 10 days after the accident, on November 9, 1989, plaintiff’s workers’ compensation lawyers sent a letter by certified mail to her employer, Yeshiva, advising that the firm had been retained to represent plaintiff and requesting that Yeshiva secure and preserve the lab coat (among other items). In the letter, plaintiff’s counsel rеquests that the vital items be preserved so that plaintiff can pursue any legal
It appears that on or about March 29, 1990, i.e., two years before cоmmencement of this action, Yeshiva produced the blender used by plaintiff at the time of the accident for inspection and testing by plaintiff’s expert and fragments of plaintiff’s burnt personal clothing, which had been retrieved and рreserved. Yeshiva claims that it was unable to locate the very lab coat which plaintiff had been wearing at the time of the accident. An affidavit by Yeshiva’s employee, Leonard Brandwein, attesting to this has been submitted. However, Yeshiva advised plaintiff that the lab coat had been purchased from codefendant Quincy Specialties Company (Quincy), which was the alleged sole provider of lab coats to Yeshiva at the time.
This action was commenced by service of a summons and complaint on June 12, 1992. The complaint alleges five causes of action against Quincy, the alleged manufacturer of the coat, seeking $30 million in compensatory damages and $50 million in punitive damages. Plaintiff alleges that the lab cоat was inherently and unreasonably dangerous due to its low ignition point, high meltability and flammability, and that it was not suitable for its intended use and purpose. The sixth and seventh causes of action — which are the subject of this motion —seek to rеcover the same sums from defendant Yeshiva on the theories of negligent and intentional spoliation. Plaintiff contends that due to defendant’s negligent and intentional failure to preserve and secure the evidence, her оpportunity to prove her claims and to obtain compensation for her injuries has been destroyed and/or severely prejudiced and/or compromised.
In this motion, defendant Yeshiva moves for an order, pursuant to CPLR 3211 (а) (5) and (7), dismissing the sixth and seventh causes of action of the complaint on the grounds that they are barred by the Statute of Limitations and the complaint fails to state a cause of action as to movant; and for sanctions agаinst plaintiff and/or her attorney, pursuant to CPLR 8303-a and 22 NYCRR part 130. Plaintiff cross-moves for an order denying Yeshiva’s motion and estopping Yeshiva from asserting the Statute of Limitations.
Yeshiva argues that since this jurisdiction does not recognize a cause of action for spoliation of evidence, the complaint failed to state a cause of action against it, and that even if
Spoliation of evidence appears to have been recognized as an actionable tort in three States: Alaskа, Florida and California (see, e.g., Hazen v Municipality of Anchorage,
The courts of New York follow the majority view and do not recognize spoliation of evidence as a cognizable tort action. A review of the relevant case law in this jurisdiction has disclosed no case precedent which recognized spoliation as a valid tort action. Rather in Pharr v Cortese (
Plaintiff asserts that the allegations of the complaint, if viewed most favorable to plaintiff, would indicate that Yeshiva discarded the laboratory coat with the intention to prevent plaintiff from proving her injury claims against the coat manufacturer thereby minimizing any third-party claims which may be asserted against Yeshiva for negligence, if any, in causing this accident and for contribution. If plaintiff can secure evidentiary proof to substantiate her claim that her employer’s destruction of the coat was designed to obstruct and did impinge upon plaintiff’s right to sue the coat manufac
The exclusivity provisions of Workers’ Compensation Law §11 would normally bar a lawsuit against an employer by an employee injured during the course of her employment. In this case it appears that plaintiff already has recovered workers’ compensation benefits as a result of this accident. However, the payment of compensation benefits does not shield employers from the entire law of torts (see, 2A Larson, Workmen’s Compensation, § 68.34 [b]) and common-law actions for employers’ torts arising outside the scope of the Workers’ Compensation Law are not barred by the exclusivity provisions of the compensation law. (DeMarco v Federal Ins. Co.,
While New York courts do not view spoliation of evidence as an actionable tort, this jurisdiction does recognize a common-law cause of aсtion against an employer for negligently and intentionally impairing an employee’s right to sue a third-party tortfeasor notwithstanding the employee having received workers’ compensation benefits. (Coley v Arnot Ogden Mem. Hosp.,
A cause of action sounding in negligence requires the following elements: (1) the existence of a duty owing by the defendant to the plaintiff; (2) defendant’s failure to discharge that duty; and (3) injury to plaintiff proximately resulting from such failure (Peresluha v City of New York,
Summary judgment should not be granted if there is any doubt as to the existence of a triable issue and especially where there is likely to be evidence needed for the prosecution of a claim that depends upon knowledge in possession of the moving party which might well be disclosed by discovery. (See, Terranova v Emil,
Without giving plaintiff an opportunity to conduct discovery to ascertain whether sufficient evidence exists to prove the elements of negligence and/or prima facie tort against defendant and to release Yeshiva from this action at this juncture would in effect deprive plaintiff of the opportunity to prove a possible valid claim against her employer. To prevent рlaintiff from attempting to prove her case would be a miscarriage of justice if plaintiff were to be able to prove that the intended scenario of the destruction of the coat was to impair plaintiffs right to sue thе coat manufacturer so as to avoid liability to Yeshiva.
Plaintiff should have an opportunity to fully discover the circumstances surrounding the destruction or whereabouts of the lab coat in issue especially in light of the serious injuries sustained and whether sufficient evidence exists to hold Yeshiva in this case. Plaintiff should be permitted to depose certain witnesses, including the professor whom plaintiff was assisting at the time of the accident, individuals who came to plaintiffs aid, and Leonard Brandwein, to possibly clarify certain issues surrounding the existence or nonexistence of the lab coat. Defendant Yeshiva was given notice to preserve the lab coat shortly after the accident, yet Brandwein’s affidavit, stating that this item of evidence cannot be found, was executed nearly one year after the accident. Brandwein’s affidavit merely states that the whereabouts of the lab coat are unknown, yet it does not state whether the coat was lost, destroyed or placed in the possession of a third party. Yeshiva claims that it did not preserve the lab coat, yet it produced the shirt plaintiff wore under the coat at the timе of the accident.
That portion of Yeshiva’s motion to dismiss plaintiffs causes of action as being barred by the Statute of Limitations is also denied as being premature. Statutes of Limitation do not require assertion of a right beforе the person entitled thereto has knowledge of or is chargeable with knowledge of such right (Low v State of New York,
Where there are substantial fаctual issues as to when the Statute of Limitations began to run, summary judgment should not be granted (Wichner v Fortunoff,
Further, if plaintiff asserts a claim grounded in negligence the Statute of Limitations of three years has not expired.
That portion of defendant’s motion seeking sanctions to be imposed upon plaintiff is denied.
Accordingly, motion by defendant Yeshiva for an order dismissing the sixth and seventh causes of action is granted only to the extent of permitting plaintiff, if she so desires, to serve an аmended complaint which shall substitute the spoliation claims with causes of action against Yeshiva for negligently and/or intentionally impairing plaintiff’s right to sue a third-party tortfeasor, within 30 days from service of a copy of this order with nоtice of entry, otherwise defendant’s motion to dismiss is granted.
Upon joinder of issue, the parties shall proceed to disclosure proceedings. Upon the completion of discovery defendant Yeshiva is permitted, if it so wishes, to renew its motion for dismissal.
Plaintiff’s cross motion is granted to the extent of the foregoing.