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Saeed v. City of New York

Supreme Court of New York, Second Department

December 13, 2017

Muhammad Saeed, as administrator for the decedent, Mohammad Rashid, and Muhammad Saeed, individually, appellant,
v.
City of New York, et al., respondents. Index No. 27824/11

          Argued-October 3, 2017

         D53907 G/htr

          Lawrence Leonard, New York, NY, for appellant.

          Zachary W. Carter, Corporation Counsel, New York, NY (Jane L. Gordon and Amanda Sue Nichols of counsel), for respondents

          City of New York, New York City Fire Department, and Valerie Vera-Tudela.

          McGaw, Alventosa & Zaj ac, Jericho, NY (Andrew Zaj ac of counsel), for respondents

          Jimmy Barrera, Emkay, Inc. (Illinois), a/t/d/b/a Emkay, Inc., Trust, Emkay, Inc., Trust, a/t/d/b/a Emkay, Inc. (Illinois), and Stuart Dean Company.

          MARK C. DILLON, J.P. SANDRA L. SGROI SYLVIA O. HINDS-RADIX ANGELA G. IANNACCI, JJ.

          DECISION & ORDER

         In an action, inter alia, to recover damages for wrongful death, etc., the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), entered May 21, 2015, as granted those branches of his separate motions which were to impose sanctions on the defendants for failure to respond to discovery demands only to the extent of directing the defendants to respond to all outstanding discovery demands, including depositions and notices to produce, within 60 days after the date of the order or be precluded from offering any evidence as to liability and damages at trial and otherwise denied those branches of the motions, and denied those branches of his motions which were to impose sanctions on the defendants for spoliation of evidence.

         ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provisions thereof denying those branches of the plaintiffs separate motions which were to impose sanctions on the defendants for spoliation of evidence; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff, payable by the defendants appearing separately and filing separate briefs, and the matter is remitted to the Supreme Court, Queens County, for further proceedings on those branches of the plaintiff s separate motions which were to impose sanctions on the defendants for spoliation of evidence, and a new determination of those branches of the motions thereafter.

         This action arises from a motor vehicle accident which occurred on September 15, 2010, at the intersection of Woodside Avenue and 76th Street in Queens. The two vehicles involved, a van and an ambulance, collided in the middle of the intersection. The force of the impact caused the van to tip over onto the plaintiffs decedent, who had been standing on the sidewalk at the intersection, resulting in his death.

         In December 2011, the plaintiff commenced this action against the City of New York, the New York City Fire Department, and Valerie Vera-Tudela, the driver of the ambulance (hereinafter collectively the City defendants), as well a Emkay, Inc. (Illinois), a/t/d/b/a Emkay, Inc., Trust, Emkay, Inc., Trust, a/t/d/b/a Emkay, Inc. (Illinois), the owner of the van, Stuart Dean Company, the lessee of the van, and Jimmy Barrera, the driver of the van (hereinafter collectively the van defendants), seeking, inter alia, to recover damages for wrongful death.

         On January 28, 2014, the plaintiff served on the City defendants combined demands and a notice to produce the event data recorder (hereinafter the EDR) for the ambulance. On the same date, the plaintiff served on the van defendants combined demands and a notice to produce the EDR for the van. After receiving no response from either set of defendants, the plaintiff made separate motions, inter alia, to impose sanctions based on the defendants' failure to respond to discovery demands and their spoliation of the EDRs. The Supreme Court granted those branches of the plaintiffs motions which sought sanctions for failure to respond to discovery demands only to the extent of directing the defendants to comply with all outstanding discovery demands, including the notices to produce, within 60 days after the date of the order or be precluded from offering any evidence as to liability and damages at trial and otherwise denied those branches of the motions, and denied those branches of the motions which sought sanctions for spoliation of evidence. The plaintiff appeals.

         '"Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126'" (Samaroo v Bogopa Serv. Corp., 106 A.D.3d 713, 713-714, quoting Holland v W.M. Realty Mgt., Inc.,64 A.D.3d 627, 629). "'[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 ...


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