Assume your case involves an accident which occurred when the defendant driver without warning, pulled abruptly out of a parking spot and struck the side of plaintiff’s vehicle.  If there are no true factual disputes as to the accident scenario, a determination of liability may be made by the court as a matter of law.  The defendant driver may be solely responsible for the accident if he entered the roadway without looking to check for oncoming traffic.  Moreover, if he claims to have checked for traffic, then he is responsible for not seeing it and proceeding into the roadway.  Either way, the liability scenario is bad for the defendant and one may argue there was nothing plaintiff could have done to avoid this collision, particularly if she had already driven past the defendant when he turned his car into the middle or rear portion of her vehicle.  Plaintiff’s own actions, one may argue, were not a factor in the happening of this accident and summary judgment should be granted against the defendants on the issue of liability. 

In the seminal case of Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974), the Court of Appeals recognized that summary judgment was appropriate in a motor vehicle accident cases where there was no viable question as to liability.  In Pomeroy, the defendant was driving in heavy traffic, looked away from the road to get something out of her purse and crashed into the car in front of her, injuring its passenger.  The lower courts denied the plaintiff passenger’s motion for summary judgment. In reversing the denial of summary judgment, the Court of Appeals held:

“Since it [summary judgment] deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Millerton Agway Co-op v. Briarcliff Farms, 17 N.Y.2d 57, 268 N.Y.S.2d 18).  But when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims properly adjudicated.”

 Id., 362 N.Y.S.2d at 133 [emphasis added].

            In the above scenario, there is likewise no genuine issue as to the negligence of the defendant driver.  He pulled his car directly into oncoming traffic without first looking to see if such a move could be executed safely, in direct contravention of the statute governing such movements.  See, VTL ¶ 1162 (“No person shall move a vehicle which is stopped, standing or parked unless such movement can be made with reasonable safety.”)  [emphasis added].   Furthermore, drivers also have a common law duty to see “that which ought to be seen”.  See, e.g., Terrel v. Kissel, 116 A.D.2d 637 (2^nd Dep’t 1986).  Failure to do so is negligence as a matter of law.  See, e.g., Breslin v. Rudden, 191 A.D.2d 471 (2^nd Dep’t 2002).  It is clear that the defendant’s negligent actions were the sole and direct cause of the instant action.  

            In Calandra v. Dishotsky, 244 A.D.2d 376 (2^nd Dep’t 1997), a case on point, the defendant driver also pulled out of a parking spot and into a lane of moving traffic, striking plaintiff’s vehicle.  The plaintiff therein moved for partial summary judgment on the issue of liability, which the trial court granted and the Appellate Division upheld.  Id.  The Court found that the defendant driver, under those factual circumstances, could not “create a triable issue of fact as to liability”.  Id. at 377.  See, also, White v. Gooding, 21 A.D.3d 485 (2^nd Dep’t 2005) (summary judgment appropriate where defendant driver pulled out into a lane of traffic without first ascertaining the traffic conditions and struck the plaintiff; thus defendant could not present a triable issue of fact despite her unsupported allegations that plaintiff could have taken some “unspecified action to avoid the accident or that he somehow contributed to its cause”); Irwin v. Mucha, 154 A.D.2d 895 (4^th Dep’t 1989) (plaintiff entitled to summary judgment on issue of liability where defendant driver moved his car forward when it was not safe to do so in violation of VTL ¶1162, and thus struck plaintiff). 

            Moreover, there is no valid argument to be made that plaintiff shared any comparative fault in the accident, particularly if plaintiff had already driven her vehicle past the defendant when he pulled out of a parking spot and struck the rear portion of her vehicle.  It is clear that a driver with the right of way is permitted to presume that other drivers will obey traffic laws that require them to yield and does not have a duty anticipate their negligent actions.  See, e.g., Perez v. Brux Cab Corp., 251 A.D.2d 157 (1^st Dep’t 1998).  Plaintiff had no opportunity to avoid the collision.  As such, plaintiff is entitled to partial summary judgment as a matter of law on the issue of liability as against the defendants.  Moreover, the Court should not permit defendant to raise speculative arguments as to how plaintiff might have avoided the accident wholly caused by the defendant.  See, e.g., Zuckerman v. City of New York, 427 N.Y.S.2d 595, 562 (1980) (mere “expressions of hope or unsubstantiated allegations” are insufficient to defeat a motion for summary judgment).

Based upon the foregoing, one may successfully argue that plaintiff has established liability “sufficiently to warrant the court as a matter of law” to direct judgment in her favor.  See, CPLR 3212[b]; see, also, e.g., Friends of Animals v. Assoc. Fur Mfrs., 46 N.Y.2d 1065, 1067 (1979).  A fair minded court may grant your timely motion on for partial summary judgment on the issue of liability.

Spoliation is the destruction or failure to preserve evidence which may be of use in pending or reasonably foreseeable litigation. Traveler’s Indemnity Co. v. CC Controlled Combustion, 2003 NY Slip Op. 5134(U).  The duty of a party to preserve evidence or face sanctions under CPLR 3126 is well established.   See, e.g., MetLife Auto & Home v. Basil Chevrolet, 303 A.D.2d 30 (4th Dep’t 2002). Penalties for failure to comply with disclosure requests are governed by CPLR 3126 and provide that a party’s failure to preserve critical evidence may be deemed spoliation.  The obligation to preserve evidence is borne of a concept of fundamental fairness and, indeed, is a precept of our legal system. “Relevant evidence is critical to the search for truth. The intentional or negligent destruction or spoliation of evidence cannot be condoned and threatens the very integrity of our judicial system.” Ortega v. City of New York, Sup. Co., Kings County, Hon. Martin M. Solomon, Index 22913/2004 (decided February 16, 2006), quoting, Oliver v. Stimson Lumber Company, 297 Mont. 336, 334 (1999) [emphasis added].

The Court has sound discretion in determining the appropriate sanctions for spoliation.  Iannucci v. Rose, 778 N.Y.S.2d. 525 (2nd Dept. 2004).  The proposed penalties under CPLR 3126 are not exhaustive, DiDomenico v. C&S Aeromatik Supplies, 252 A.D.2d 41, 49 (2d Dep’t 1998), but may include the significant remedy of striking the offending party’s pleading. Even if the evidence in question was destroyed before the offender became a party, sanctions are still appropriate if the offender was on notice of the potential for litigation or reasonably could have anticipated litigation. Langer v. Well Done, Ltd, 112 Misc.3d 1056(A), 815 N.Y.S.2d 494 (2006); Mudge, Rose, Guthrie, Alexander & Ferdon v. Penguin Air Cond. Corp., 221 A.D.2d 243 (1st Dep’t 1995). That is, if the spoliator knew that the evidence “might be needed” for future litigation, he was under a duty to preserve it. Lowell v. USA, Inc. d/b/a USA Empire Roller Skating Center, 28 A.D.3d 721 (2d Dep’t 2006).

The sanctions for spoliation may be severe. The severity is often measured by the sound discretion of the court in light of the prejudice to the party for whom the evidence is not available. DiDomenico, supra, 252 A.D.2d at 41, 49 (2d Dep’t 1998). In DiDomenico, the Appellate Division found that where the lost or destroyed evidence limits or precludes a party from presenting their claim with “incisive evidence”, “the spoliator’s pleading is properly stricken in order to obviate a trial that is ‘based on rank swearing contests’”.

Moreover, the moving party need not establish that the offending party acted in bad faith. Courts are clear that whether the evidence at issue was lost or destroyed either through ill will or negligence, the prejudicial effect is the same. “[W]hen a party alters, loses or destroys key evidence before it can be examined by the other party’s expert, the court should dismiss the pleadings of the party responsible for the spoliation … Spoliation sanctions … are not limited to cases where the evidence was destroyed willfully or in bad faith…” Squitieri v. City of New York, 248 A.D.2d 201, 202-203, 669 N.Y.S.2d 589 (1st Dept. 1998) [emphasis added]; see, also, Mudge, Rose, supra, 221 A.D.2d at 243 (1st Dep’t 1995); Yi Min Ren v. Professional Steam-Cleaning, Inc., 271 A.D.2d 602, 603 (2d Dep’t 2000) (“Where a crucial item of evidence is lost, either intentionally or negligently, the party responsible should be precluded from offering evidence as to its condition”).  To justify striking of the pleading absent bad faith on the spoliator, however, the court may require the moving party to demonstrate the prejudice as a result of the lost or missing evidence.  See, e.g., Barone v. City or New York, 861 N.Y.S.2d 709 (2nd Dep’t 2008).

For example, the loss of an “Incident Report” made out by a party defendant which presumably details the facts, circumstances and witnesses to an incident, is potentially significant prejudicial to the Plaintiff. Such a report, which is prepared by defendant personnel, may contain the identities of any witnesses to the incident and statements of their respective accounts of the accident. Those witnesses may very well have provided testimony which is favorable to the Plaintiff. The Plaintiff is prejudiced by the non-disclosure of this report.

Recent lower court decisions have also struck pleadings based upon the destruction of evidence. In McRae v. Lackman Culinary Services, Inc., (236 NYLJ Sup. Ct. Nassau Co., 11/6/06), a motor vehicle accident case in which a pedestrian was hit by a van while crossing an intersection, the court struck defendant’s answer because the defendant had failed to preserve a critical log book which would have helped determine whether its van had been in use on the date of the accident. Even though production of the log book was not requested prior to its destruction, the court held that the defendant was on notice “that the evidence may be needed for future litigation” and that plaintiff was prevented from proving her case with “incisive evidence”.

An aggressive litigant should not accept a defendant’s representation that a critical item of evidence has been lost or simply rely upon an instruction at trial regarding lost evidence. The proof of one’s case may be significantly damaged by the loss of such evidence and, justly, there are severe remedies that may be imposed against the offending party. One is not required to show that they are unable to prove their claim in absence of the evidence, simply that the lost materials potentially rob the litigant of proof by “incisive” evidence. The loss and/or destruction of such valuable evidence, whether in good faith or not, should be met by the appropriate sanction of striking a Defendant’s Answer.

DISTRICT ATTORNEY
QUEENS COUNTY
125-01 QUEENS BOULEVARD
KEW GARDENS, NEW YORK 11415-1568
718-286-6000

Queens District Attorney Richard A. Brown announced today that a former mortgage company employee whose civil lawsuit against the New York City Transit Authority was placed on hold earlier this year after the judge declared a mistrial and referred the matter to the District Attorney’s office for possible prosecution for fraud has, in fact, been charged with submitting false claims to the Transit Authority for which he received more than $16,000 in lost wages following a bus accident. In addition, while being processed prior to his arraignment, it was revealed that the defendant is wanted on a Pennsylvania warrant for an alleged 2004 rape.

District Attorney Brown said, “The defendant is accused of filing a false claim with the New York City Transit Authority for wages he said he lost after being unable to work in the aftermath of a bus accident. Claims like those allegedly filed in this case take money out of the pockets of all New Yorkers. While allegedly stealing from this agency is bad enough, it turns out that a warrant had been issued for the defendant who is wanted for the alleged rape of a minor in Pennsylvania.”

The defendant has been charged with third-degree grand larceny, third-degree insurance fraud, first-degree perjury and first-degree falsifying business records. He was arraigned last night before Queens Criminal Court Judge Suzanne Melendez and ordered held without bail because of his fugitive status. He refused to waive extradition to Pennsylvania. If convicted in the Queens case he faces up to four years in prison.

District Attorney Brown said that, according to the charges, the defendant claimed to have been injured in a bus accident on September 11, 2006, at the intersection of Baisley Avenue and Bedell Boulevard. As a result of the alleged accident, he filed a no-fault insurance claim for lost wages with the New York City Transit Authority. The defendant later testified under oath about the lost wage claim in connection with a lawsuit he filed against the NYCTA. The defendant testified that his earnings were approximately $5,000 a month, and that he had earned $4,000 during the month of July 2006 and $5,000 during the month of August 2006, according to a transcript of the proceeding, while working at Discount Home Mortgage, which is located at One Cross Island Plaza, Rosedale, Queens.

Furthermore, the District Attorney said, a New York motor vehicle no-fault insurance employer’s wage verification request allegedly submitted to the NYCTA by the defendant in support of his lost wage claim indicated that the defendant earned $3,000 a month at Discount Home Mortgage. Investigators from the District Attorney’s Detective Squad, however, spoke to the defendant’s former employer – the president of Discount Home Mortgage – and learned that he never signed the wage verification form and that the defendant did not earn $4,000 during July 2006 and $5,000 during August 2006, but in fact earned $1,100 during that period.

In addition, the District Attorney said, the defendant was fingerprinted following his arrest and as the prints were processed a warrant for the defendant issued in Pennsylvania was revealed indicating that the defendant was charged in Harrisburg, in Dauphin County, on June 14, 2005, for the alleged rape by forcible compulsion of a person under the age of 14 on December 20, 2004.

According to District Attorney Brown, the investigation of the grand larceny case began after it was referred to the District Attorney’s office for investigation by Queens Supreme Court Justice Duane Hart, who was overseeing the civil lawsuit brought by the defendant.

The investigation was conducted by Detective Joseph Brancaccio and Detective Patrick F. Dolan of the District Attorney’s Detective Bureau under the supervision of Sergeant Evelyn Alegre and Lieutenant Robert J. Burke, and the overall supervision of Chief Lawrence J. Festa and Deputy Chief Albert D. Velardi.

It should be noted that a criminal complaint is merely an accusation and that a defendant is presumed innocent until proven guilty. 

The Defendant is being represented my Matthew D. Myers.