Plaintiffs appeal from orders of the Supreme Court, New York County (Cynthia Kern, J.), entered February 7, 2012, and September 20, 2011, which, to the extent appealed from as limited by the briefs, granted defendants-respondents' motion to reargue a prior order imposing a preclusion as a sanction for spoliation of evidence, and, upon reargument, vacated the imposition of the sanction, and denied plaintiff's cross motion, inter alia, to strike certain affirmative defenses for failure to comply with discovery obligations.
Warren J. Willinger, Mount Kisco, for appellants.
Michael A. Cardozo, Corporation Counsel, New York (Mordecai Newman and Larry A. Sonnenshein of counsel), for respondents.
Angela M. Mazzarelli, J.P., Richard T. Andrias, David B. Saxe, Sallie Manzanet-Daniels, Judith J. Gische, JJ.
This appeal requires us to decide whether spoliation sanctions were merited for the failure of defendant City to take steps to prevent the automatic destruction of a recorded radio run that could have either confirmed or called into question its asserted "emergency operation" affirmative defense under Vehicle and Traffic Law §§ 114-b, 1103 and 1104. To decide whether this failure constituted spoliation, we must determine the proper legal standards to be applied where the destroyed evidentiary material at issue is an audiotape of a radio communication. In particular, we must decide whether this spoliation claim can be fully addressed with the established New York spoliation doctrine, or whether we should apply, in this context, the Zubulake standard regarding spoliation of discoverable electronically stored information (ESI) (see Zubulake v UBS Warburg LLC, 220 FRD 212 [SD NY 2003] [" Zubulake IV "]), which has already been adopted in this Department in cases involving ESI discovery (see U.S. Bank, N.A. v GreenPoint Mtge. Funding, Inc., 94 A.D.3d 58 [1st Dept 2012]; VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 A.D.3d 33 [1st Dept 2012]; Ahroner v Israel Discount Bank of N.Y., 79 A.D.3d 481 [1st Dept 2010]).
On June 30, 2009, an NYPD vehicle operated by Police Officer Matthew Peacock collided with a vehicle operated by defendant Geraldo Falcon, mounted a nearby sidewalk, and struck five pedestrians, including plaintiffs Kevin Strong, Miguel Carrasquillo, and De Fa Chen. Their three separate personal injury actions, seeking money damages from defendants City of New York, Officer Peacock and Geraldo Falcon, have been consolidated for trial.
Plaintiff Strong filed his notice of claim on July 9, 2009, and commenced an action initially against defendant Falcon alone. On July 22, 2009, before any municipal defendant could be joined as a party, Strong brought a motion by order to show cause for an order compelling the NYPD to provide copies of Sprint reports, radio calls, and the call log for the 30 minutes preceding the accident. Although that motion was withdrawn on November 19, 2009, the record contains an affidavit of service by counsel indicating that the order to show cause and supporting papers were served on the NYPD on July 31, 2009.
Following his General Municipal Law § 50-h hearing on September 7, 2009, Strong served an amended verified complaint dated September 10, 2009, naming the City and Officer Peacock, in addition to Falcon, as defendants. The City joined issue on September 21, 2009, at which time it interposed the emergency operation defense, essentially claiming that Officer Peacock's vehicle was an authorized emergency vehicle engaged in an emergency operation at the time of the accident, and therefore, the City could only be held liable if Peacock acted with reckless disregard for the safety of others.
The Carrasquillo plaintiffs filed their notice of claim on September 1, 2009, and Miguel Carrasquillo's 50-h hearing was held on December 7, 2009. The Carrasquillos commenced their action against all three defendants on March 31, 2010. When the municipal defendants joined issue in April 2010, their answer also pleaded the emergency operation defense.
Plaintiffs' disclosure demands served on the municipal defendants began with Strong's demand for a bill of particulars from the City as to its affirmative defenses, dated June 21, 2010, and his notice for discovery and inspection, dated June 23, 2010. Among Strong's discovery requests was a demand for audiotapes of the alleged emergency being responded to at the time of the accident, and the radio dispatcher calls and call logs for the emergency operation and accident. A discovery order dated November 17, 2010 directed the City to comply with Strong's discovery requests. The City's response, dated March 22, 2011, provided some reports and agreed to turn over a copy of a 911 call, but did not include any recordings or transcriptions of the transmission that Officer Peacock allegedly relied on to justify proceeding in an emergency fashion.
Underlying Discovery Motion
In a motion dated May 31, 2011, Strong and the Carrasquillos asked for an order precluding the City and Officer Peacock from offering particulars at trial in support of their emergency operation defense, based on the City's failure to comply with plaintiffs' discovery demand. In opposition, the City submitted the affidavit that gave rise to the spoliation claim at the heart of this appeal. In that affidavit, NYPD supervising police communication technician Awilda DeJesus explained that any recording of communications between a patrol unit and ...