This rule was confimed recently by the Court of Appeals in Petrone v. McCloy, 2009 NY Slip Opinion 04694, Decided June 9, 2009:  “[W]hen harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule articulated in Collier- . . .  i.e., the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal’s vicious propensities (see Collier, 1 NY3d at 446-447).

 Vicious propensities include the “propensity to do any act that might endanger the safety of the persons and property of others in a given situation” (Dickson v McCoy, 39 NY 400, 403 [1868]). The burden, of course, will be upon the plaintiff to establish that the defendant owner of the dog knew or should have known of the animal’s vicious propensities.  But, importantly, the dog IS NOT given “one free bite” as the law of our state is frequently mistook.  As the Court of Appeals has acknowledged in Collier v. Zambito:

“Knowledge of vicious propensities may of course be established by proof of prior acts of a similar kind of which the owner had notice (see Benoit v Troy & Lansingburgh R.R. Co., 154 NY 223, 225 [1897] . . . In addition, a triable issue of fact as to knowledge of a dog’s vicious propensities might be raised– even in the absence of proof that the dog had actually bitten someone–by evidence that it had been known to growl, snap or bare its teeth. Also potentially relevant is whether the owner chose to restrain the dog, and the manner in which the dog was restrained (see Hahnke v Friederich, 140 NY 224, 226 [1893]; see also Rider v White, 65 NY 54, 55-56 [1875]). The keeping of a dog as a guard dog may give rise to an inference that an owner had knowledge of the dog’s vicious propensities.  See, Hahnke, 140 NY at 227 . . .  Finally, plaintiffs are not unduly burdened by the requirement of proof that a defendant know or should know of an animal’s vicious propensities. Once such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities (see Strunk v Zoltanski, 62 NY2d 572, 575-576 [1984]). This disposition does not entitle dog owners to an automatic ‘one free bite.’ There could certainly be circumstances where, although a dog has not yet bitten a person, its vicious nature is apparent. In that situation, the owner’s success in keeping the dog confined or restrained in the past would not insulate the owner from liability.”

Thus, “a vicious propensity is not limited to a bite or other attack, but ‘includes a propensity to act in a manner that may endanger the safety of another, whether playful or not.” Provorse v Curtis, 288 AD2d 832; Mitura v Roy, 174 AD2d 1020; Anderson v Carduner, 279 AD2d 369, 369-370); Marquardt v Milewski, 288 AD2d 928, 732 NYS2d 801.  (Any ‘known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendant liable for damages resulting from such an act.’).

 As such, there is a growing body of case law which has permitted plaintiffs to establish a dog’s “vicious propensity” without an actual showing of a prior attack by the animal. See, e.g., Anderson v Carduner, 279 AD2d 369, 720 NYS2d 18 (dog’s tendency to jump up and greet people causes risk of injury); Moriano v Schmidt, 133 AD2d 72, 518 NYS2d 416 (dog growling and pulling at chain); Fontecchio v Esposito, 108 AD2d 780, 485 NYS2d 113 (dog’s tendency to bite, snap, bark and bare teeth); Lagoda v Dorr, 28 AD2d 208, 284 NYS2d 130 (dog’s tendency to jump up on people).  Further, the damages recoverable from a strictly liable owner are not limited to those suffered as a result of direct contact with the animal. see Pollard v United Parcel Service, 302 AD2d 884, 754 NYS2d 473 (plaintiff who escaped the bite of the defendant’s dog may recover damages sustained as a result of being struck by a motor vehicle while attempting to evade the dog).

 Very often, cases without a prior bite will turn on the specific facts related to the dog in question and the manner in which it was handled by the owner.  The jury may consider whether the owner chose to restrain the animal and the manner in which the animal was restrained, see Brice v Bauer, 108 NY 428; Morse v Colombo, 8 AD3d 808; or that “Beware of Dog” signs were posted, Parente v Chavez, supra; Shaw v Burgesss, 303 AD2d 857, 756 NYS 2d; Arcara v Whytas, 219 AD2d 871; But, see,  Altmann vs Emigrant Savings Bank, 249 AD2d 67, 68 (First Dep’t 1998) (Presence of “Beware of Dog” signs standing alone are not enough to imply that dog owner knew of his dog’s vicious propensities); Frantz v. McGonagle, 242 AD2d 888 (Fourth Dep’t 1997); Arcara v.Whytas, 219 AD2d 871, 872 (Fourth Dep’t 1995). The fact that a dog was chained and strained on its chain and barked when people approached was held insufficient to create an inference that the dog was vicious.  Gill vs Welch, 136 AD2d 940 (Fourth Dept, 1988).

IF a defendant can establish that his dog has not previously exhibited any vicious propensity, he may be entitled to summary judgment. Arcara, 219 AD2d at 871, 872 (undisputed proof that dog had never bitten anyone before and had never bared its teeth or growled at anyone before entitled summary judgment). If the defendant moves for summary judgment and introduces admissible evidence that he had no knowledge of the dog’s vicious propensities, the burden shifts to plaintiff to submit rebuttal evidence of risk having his complaint dismissed. Althoff v. Lefebvre, 240 AD2d 604 (Second Dep’t 1997). If there is conflicting evidence as to the dog’s vicious propensities, the issue must be given to a jury to decide.  Frantz v. McGonagle, 242 AD2d 888 (Fourth Dep’t 1997).

As for damages, a plaintiff may recover for all out-of-pocket costs, medical costs, lost wages, pain and suffering and even Punitive Damages in certain circumstance.  See, e.g., Nardi v. Gonzalez, 165 Misc.2d 336, 339 (1995).  Given the vicious nature of an animal attack and the physical as well as psychological injuries it can wreak, the damages in such cases may be very significant. IF the dog owner had knowledge that his dog presented a risk, or if he should have known based upon prior actions of the dog, he or she will be strictly liable for all the damages caused.

Assume a case wherein the defendant driver makes a right hand turn into a crosswalk and strikes the plaintiff in the crosswalk. Also assume the police report correctly documents the scenario and that there is no evidence that plaintiff “darted out” into the way of the injurious vehicle. As a matter of law, defendants’ driver negligence should be deemed the sole proximate cause of the accident.

This Motion Is Proper and Timely
Summary judgment motions may be brought at any time after an issue is joined. CPLR 3212. Completion of discovery is not a requisite before the court can grant a summary judgment motion. Chemical Bank v. PIC Motors Corp., 58 N.Y.2d 1023,1026 (1983); Naryaev v. Solon, 6 A.D.3d 510 (2d Dep’t 2004); Herba v. Chichester, 301 A.D.2d 822 (3d Dep’t 2003). “The mere hope that evidence sufficient to defeat the motion may be uncovered during the discovery process is insufficient.” Naryaev, 6 A.D.3d at 510; Jones v. Gameray, 153 A.D.2d 550 (2d Dep’t 1989). A party opposing summary judgment on the basis of requiring discovery must prove that he is “not merely seeking a fishing expedition.” Kaltsas v. Solow, 15 Misc.3d 1124(A) (Westchester Cty. S.Ct. 2007). It is true that a party opposing a motion for summary judgment may claim that facts essential to justify opposition exist which are within the exclusive knowledge and possession of the moving party and, thus, that the motion should be delayed until after some discovery. See CPLR §3212(f). However, without an evidentiary showing by the opposing party, “mere speculation or conjecture” is insufficient to support this conclusion. Pank v. Village of Canajoharie, 275 A.D.2d 508, 509 (3d Dep’t 2000).
“A grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence.” Bailey v. New York City Transit Authority, 270 AD2d 156, 157 (1st Dept.2000) [emphasis added]; Zuckerman v City of New York, 9 N.Y.2d 557 (N.Y. 1980). (“The opposition papers submitted herein consists solely of the affirmation of an attorney. As such, the defendant has failed to submit evidence in admissible form to raise a triable issue of fact. We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.”)
Defense counsel may argue that because depositions have not yet been held in this case, the within motion is premature. This argument must fail. It is well settled that the “defendant’s failure to raise any factual issues to absolve him of liability or even submit a sworn statement of facts or to credibly explain the failure to do so defeats the need for discovery. Since defendant is the party with knowledge of the factual circumstances as to how he collided with the front vehicle, discovery would serve no purpose.” Johnson v. Phillips, 261 A.D.2d 269, 690 N.Y.S.2d 545 (1 Dept. 1999). [Emphasis added]. Furthermore, “the defendants’ purported need to conduct discovery did not warrant denial of the motion since they already had personal knowledge of the relevant facts.” Abramov v. Miral Corp., 24 A.D.3d 397, 805 N.Y.S.2d 119 (2 Dept. 2005). “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the motion.” Kimyagarov v. Nixon Taxi Corp., — A.D.3d —-, — N.Y.S.2d —-, 2007 WL 4127688, 2007 N.Y. Slip Op. 09208 (2 Dept. 2007). [Emphasis added]. As the Appellate Division recently held in a decision affirming the trial court’s granting of partial summary judgment on liability to the plaintiff in a rear-end automobile accident case, “…in view of the fact that the defendants had personal knowledge of the relevant facts underlying the accident, their purported need to conduct discovery does not warrant denial of the motion.” Emil Norsic & Son, Inc. v. L.P. Transp., Inc., 30 A.D.3d 368, 815 N.Y.S.2d 736 (2 Dept 2006).
Summary Judgment is warranted

In the seminal case of Andre v. Pomeroy, 362 N.Y.S.2d 131, 133 (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. (“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 other litigants the right to have their claims properly adjudicated”).

In the scenario at bar, there is likewise no genuine issue as to the negligence of defendants. The driver drove his car directly into a pedestrian crosswalk without first looking to see if such a move could be executed safely, in direct contravention of the statute governing such movements. See, VTL § 1111; NYC Traffic Rules § 4-04 [emphasis added] (“the operator of a vehicle shall yield the right of way to a pedestrian crossing within a crosswalk”). Furthermore, drivers also have a common law duty to see “that which out to be seen”. See, e.g., Terrel v. Kissel, 116 A.D.2d 637 (2nd 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 (2nd Dep’t 2002).

New York State Vehicle and Traffic Law states:
§ 1111. Traffic-control signal indications

(a) Green indications:

1. Traffic, except pedestrians, facing a steady circular green signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. Such traffic, including when turning right or left, shall yield the right of way to other traffic lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited.

2. Traffic, except pedestrians, facing a steady green arrow signal may cautiously enter the intersection only to make the movement indicated by such arrow, or such other movement as is permitted by other indications shown at the same time, except that a U-Turn may be made by traffic facing a left green arrow signal unless a sign prohibits such U-Turn or such U-Turn is in violation of any other provision of law. Such traffic shall yield the right of way to other traffic lawfully within the intersection or an adjacent cross walk at the time such signal is exhibited.

New York law is clear that where a motorist fails to see, and thus fails to yield the right of way to, a pedestrian crossing in a crosswalk with a pedestrian walk signal in his favor, the motorist is entirely at fault for the accident. In Voskin v Lemel, 52 A.D.3d 503, 859 N.Y.S.2d 489 [2nd Dept. 2008] [emphasis added], the court held:

In this case involving an accident between a motor vehicle and a pedestrian, the plaintiff established his prima facie entitlement to summary judgment in his favor by demonstrating that the defendant motorist was negligent in failing to yield the right of way to him while he was crossing a street, within the crosswalk, with the pedestrian “WALK” signal in his favor (see Zabusky v Cochran, 234 AD2d 542, 651 N.Y.S.2d 190; Jermin v APA Truck Leasing Co., 237 AD2d 255, 655 N.Y.S.2d 406). The plaintiff’s case was buttressed by the certified copy of the police accident report containing the defendant’s admission that he did not see the plaintiff and struck him (see Niyazov v Bradford, 13 AD3d 501, 786 N.Y.S.2d 582; Vaden v Rose, 4 AD3d 468, 771 N.Y.S.2d 670; Kemenyash v McGoey, 306 AD2d 516, 762 N.Y.S.2d 629; Guevara v Zaharakis, 303 AD2d 555, 756 N.Y.S.2d 465).

See, also, Kirchgaessner v. Hernandez, 40 A.D.3d 437, 836 N.Y.S.2d 170 [1st Dept. 2007]. In Benedikt v. Certified Lumber Corporation, 60 A.D.3d 798, 875 N.Y.S.2d 526 [2nd Dept. 2009] [emphasis added], the court held:

The plaintiffs established a prima facie case for summary judgment in their favor on the issue of liability by demonstrating that the defendant driver failed to yield the right of way to the injured plaintiff, Adina Benedikt, who was crossing the street within the crosswalk with the pedestrian “WALK” signal in her favor (see Zabusky v Cochran, 234 AD2d 542, 651 N.Y.S.2d 190; Jermin v APA Truck Leasing Co., 237 AD2d 255, 655 N.Y.S.2d 406). The plaintiffs submitted an affidavit by the injured plaintiff to that effect, which was supported by copies of the police accident reports and the MV-104 report signed by the defendant driver, containing that defendant’s admission against interest that he did not see the injured plaintiff before he struck her (see Niyazov v Bradford, 13 A.D.3d 501, 786 N.Y.S.2d 582; Vaden v Rose, 4 AD3d 468, 771 N.Y.S.2d 670; Kemenyash v McGoey, 306 AD2d 516, 762 N.Y.S.2d 629; Guevara v Zaharakis, 303 AD2d 555, 756 N.Y.S.2d 465). The affidavit of the defendant driver, submitted in opposition to the motion, merely raised feigned issues of fact, which are insufficient to defeat a motion for summary judgment (see Capraro v Staten Is. Univ. Hosp., 245 AD2d 256, 664 N.Y.S.2d 826; Miller v City of New York, 214 AD2d 657, 625 N.Y.S.2d 271; Garvin v Rosenberg, 204 AD2d 388, 614 N.Y.S.2d 190), and the defendants failed to demonstrate that further discovery was warranted (see Lopez v WS Distrib., Inc., 34 AD3d 759, 760, 825 N.Y.S.2d 516).

Claims by a defendant driver that he or she was looking out for pedestrians crossing and did not see the plaintiff are merely admissions of negligence and do not create material issues of fact. In Sulaiman v. Thomas, 54 A.D.3d 751, 863 N.Y.S.2d 723 [2nd Dept. 2008], the Court reasoned:

In his opposing affidavit, the defendant stated, inter alia, that as he made his right turn onto Sutter Avenue, the intersection and crosswalk were free of pedestrians. As he cleared the intersection, he saw several pedestrians standing on the sidewalk to his right shouting and pointing to the right side of his vehicle. He stopped, exited his vehicle, and only then saw the injured plaintiff lying on the road next to his vehicle. The defendant argued that the injured plaintiff’s negligence was the sole cause of the accident, and that he had stepped off the sidewalk and walked into the right side of the defendant’s vehicle “approximately” three feet east of the crosswalk. The defendant failed to raise a triable issue of fact in opposition to the plaintiffs’ prima facie showing (see Beamud v Gray, 45 AD3d 257, 844 N.Y.S.2d 269; Abramov v Miral Corp., 24 AD3d 397, 398). His affidavit makes clear that he did not see the injured plaintiff prior to striking him. The defendant also contended that the injured plaintiff was comparatively negligent. However, the defendant’s unsupported speculation that the injured plaintiff was comparatively negligent was insufficient to raise a triable issue of fact (see Beamud v Gray, 45 AD3d 257, 844 N.Y.S.2d 269).

In summary, there is very solid case law supporting summary judgment in this factual scenario, even before discovery. If the motion is granted, your case is advanced almost directly to the trial stage and any deposition of the plaintiff would be limited to the issue of damages only. Even should the judge lack the fortitude to grant the motion, it is still a worthwhile means of fleshing out the defense, as the opposition to the motion will necessarily include an affidavit from the driver. As such, when we have the benefit of a strong liability case, it is wise to be aggressive.

Your judgment, coordination and ability to drive a vehicle change when you consume any amount of alcohol. The level of impairment depends on five conditions:

1. the amount of alcohol you drink
2. the amount of food you eat before or while you drink alcohol
3. the length of time you drink alcohol
4. your body weight, and
5. your gender.

There is no quick method to become sober. The best method is to wait until your body absorbs the alcohol. The average rate that your body processes alcohol is approximately one drink per hour.

What are the alcohol and drug-related violations in New York State?

BAC = blood alcohol concentration

1. DWI: Driving While Intoxicated; .08 BAC or higher or other evidence of intoxication.
2. Aggravated DWI: Aggravated Driving While Intoxicated: .18 BAC or higher.
3. DWAI/Alcohol: Driving While Ability Impaired (by alcohol); .05 BAC to .07 BAC, or other evidence of impairment.
4. DWAI/Drug: Driving While Ability Impaired by a single Drug other than alcohol.
5. DWAI/Combination: Driving While Ability Impaired by a the Combined Influence or Drugs or Alcohol.
6. Chemical Test Refusal: A driver who refuses to take a chemical test (normally a test of breath, blood or urine) can receive a driver license revocation of at least one year (18 months for a commercial driver) and must pay a $500 civil penalty ($550 for a driver of commercial vehicles) to apply for a new driver license. A driver who refuses a chemical test during the five years after a DWI-related charge or previous refusal will have their driver license revoked for at least 18 months (permanent for a commercial driver) and must pay a $750 civil penalty to apply for a new driver license. If the driver is under age 21, and refuses a chemical test during the five years after a DWI-related charge or previous refusal, they will have their driver license revoked for at least one year or until age 21, whichever is longer and must pay a $750 civil penalty to apply for a new driver license.
7. Zero Tolerance Law: A driver who is less than 21 years of age and who drives with a .02 BAC to .07 BAC violates the Zero Tolerance Law.

What are the penalties for Alcohol-related or Drug-related Violations?

Penalties for Alcohol-related and Drug-related Violations:

Violation (1) Mandatory Fine (2) Maximum Jail Term Mandatory Driver License Action (3) Aggravated Driving While Intoxicated (A-DWI) $1,000 – $2,500 1 year Revoked for at least one year

Second A-DWI in 10 years (E felony) (1) $1,000 – $5,000 4 years Revoked for at least 18-months (5)

Third A-DWI in 10 years (D felony)(1) $2,000 – $10,000 7 years Revoked for at least 18-months (4,5)

Driving While Intoxicated (DWI) or Driving While Impaired by a Drug (DWAI-Drug) $500 – $1,000 1 year DWI-Revoked for at least six months

DWAI-Drugs – Suspended for at least six months

Second DWI/DWAI-Drug violation in 10 years (E felony)(1) $1,000 – $5,000 4 years Revoked for at least one year

Third DWI/DWAI-Drug violation in 10 years (D felony)(1) $2,000 – $10,000 7 years Revoked for at least one year (4)

Driving While Ability Impaired by a Combination of Alcohol/Drugs (DWAI-Combination) $500 – $1,000 1 year Revoked for at least six months

Second DWAI/Combination in 10 years (E felony)(1) $1,000 – $5,000 4 years Revoked for at least one year/18 months (5)

Third DWAI/Combination in 10 years (D felony)(1) $2,000 – $10,000 7 years Revoked for at least one year/18 months (4,5)

Driving While Ability Impaired by Alcohol (DWAI) $300 – $500 15 days Suspended for 90 days

Second DWAI violation in 5 years $500 – $750 30 days Revoked for at least six months

Zero Tolerance Law $125 civil penalty and $100 fee to terminate suspension None Suspended for six months

Second Zero Tolerance Law $125 civil penalty and $100 re-application fee None Revoked for one year or until age 21

Chemical Test Refusal $500 civil penalty ($550 for commercial drivers) None Revoked for at least one year, 18 months for commercial drivers.

Chemical Test Refusal within five years of a previous DWI-related charge/Chemical Test Refusal $750 civil penalty None Revoked for at least 18 months, one-year or until age 21 for drivers under age 21, permanent CDL revocation for commercial drivers.

Chemical Test Refusal -
Zero Tolerance Law $300 civil penalty and $50 re-application fee None Revoked for at least one year.

Chemical Test Refusal -
Second or subsequent Zero Tolerance Law $750 civil penalty and $50 re-application fee None Revoked for at least one year.

Driving Under the Influence – (Out-of-State) N/A N/A Suspended for 6 months. If less than 21 years of age, revoked at least one year.

Driving Under the Influence – (Out-of State) with any previous alcohol-drug violation N/A N/A Suspended for 6 months. If less than 21 years of age, revoked at least one year or until age 21 (longest term).

1. Greater penalties can also apply for multiple alcohol or drug violations within a 10-year period.
2. Surcharges are added to misdemeanors ($160) and felonies ($270).
3. The driver license penalties for drivers under the age of 21, and for drivers of commercial motor vehicles and other professional drivers, are different.
4. Three or more alcohol or drug-related convictions or refusals within 10 years can result in permanent revocation, with a waiver request permitted after at least 5 years.
5. A driver with an Aggravated DWI violation conviction within the prior 10 years will receive a minimum 18-month revocation if convicted of DWI, DWAI/Drugs or DWAI/Combination. Also a driver with a prior DWI, Aggravated DWI, DWAI/Drugs or DWAI/Combination with the prior 10 years will receive a minimum 18-month revocation.

Can I get a conditional license if I was convicted of DWI or DWAI?
If you receive your first conviction for DWI or DWAI and you participate in the Drinking Driver Program (DDP), you can receive a conditional license. The DMV determines if you are eligible for the DDP. A judge can stop your enrollment in the DDP. To get complete information read the DMV brochure, The Drinking Driver Program.

The law mandates participation in the DDP, even if the driver is not eligible for a conditional license, for convictions of specific alcohol or drug-related violations, or in specific plea-bargaining situations.

Christopher D. Galiardo
MYERS & GALIARDO LLP

 The threshold issue in any claim of false arrest, is whether the arresting officers had probable cause to arrest the Plaintiff.  That is, a person’s confinement is otherwise “privileged” when probable cause exists to arrest him. Covington v. City of New York, 171 F.3d 117, 122 (2d Cir. 1999).  The defendant bears the burden of demonstrating that the arrest was justified based upon probable cause.  Raysor v. Port Authority of New York & New Jersey, 768 F.2d 34 (2d Cir. 1985).  To meet this burden, however, the defendant must demonstrate evidence which amounts to “more than a rumor, suspicion, or even a strong reason to suspect.”  United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983) [emphasis added].  Moreover, the evidence of guilt must be particularized to the individual being arrested.  See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91 (1979).

 The fact that a client was arrested pursuant to the execution of a search warrant is not determinative on the issue of probable cause.  Barr v. County of Albany, 50 N.Y.2d 247, 255 (1980) (“while it can be said that a search warrant sanctions the entrance by law enforcement officers upon private property to conduct a search within the confines of the warrant, it by no means lends judicial approval to the arrests of those persons found thereon”).  That is, a search warrant does not authorize an arrest.  Id.  In Barr, the police executed a search warrant of a premise and arrested virtually all fifty persons present for marijuana possession.  The charges were dismissed against plaintiffs and they brought  subsequent claims for false arrest.  The court denied defendant’s motions for summary judgment holding that the search warrant did not immunize the officers for liability for false arrest.  Id.

 In Ybarra v Illinois, 444 U.S. at 85, the police obtained a warrant to search a tavern where the bartender was suspected of drug activity.  While executing the warrant, the police conducted pat-down searches of the tavern patrons, including Ybarra.  The police found drugs on Ybarra and arrested him.  The Court held that a “person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Id. at 91; citing, Sibron v. New York, 392 U.S. 40, 62-63 (1968) [emphasis added]. 

 Likewise, in Flores v. City of Mount Vernon, the police officers executed a search warrant at a bar where the tavern owner was reportedly selling drugs.  41 F. Supp 439 (S.D.N.Y. 1999).  The police found certain patrons in possession of cocaine at the tavern.  One of these patrons was seen picking up a packet of what appeared to be cocaine from the bar.  The officers observed another patron dropping a packet of cocaine on the floor.  More cocaine and marijuana was found hidden in the basement of the establishment.  In addition to the patrons, the police arrested the bartender, Flores, who was present and working at the time the warrant was executed.  Ultimately, Ms. Flores was not charged and brought a claim of false arrest against the officers and municipality.  The Court found that the fact that half the patrons in the bar possessed cocaine did “not give rise to a reasonable suspicion that [Flores] was involved in drug activity, let alone rise to the level of probable cause”.  Id. at 443 [emphasis added].  Further, the fact that patrons dropped narcotics to the floor in plain view did “not admit the inference” that they obtained them from plaintiff. Id. at 444. 

 In Flores, the arrest occurred in a public forum.  What if your client was arrested in a private residence?  Assume your client was an invited guest watching television when the police executed a search warrant targeting the owner of the apartment.  The drugs found in the apartment were not in plain view and were not in proximity to your client.  Your client was not a resident of the apartment and there was nothing connecting him to the apartment.  Nor was there anything about his conduct which indicated a common scheme with the other occupants of the apartment. There is an argument to be made that the circumstances of Flores (cocaine literally flying in the air in the proximity of claimant) were far more egregious than those described above.      

 Pursuant to applicable New York search and seizure law, one may argue there was no probable cause for the police officers to arrest your client.  It is not alleged that your client directly possessed drugs.  The only remaining means to assert his “possession” are (i) the application of a “room presumption”; or (ii) the theory that he “constructively” possessed the drugs.  Since the alleged contraband was not in “plain view” the police were not permitted to arrest all the occupants based upon a permissive “room presumption”.  See, N.Y. Pen. L. 220.25(2) (the presence of a narcotic drug in “open view in a room other than a public place . . . is presumptive evidence of knowing possession thereof by each and every person in close proximity” to the drugs) [emphasis added]; see, e.g., People v. Martinez, 83 N.Y.2d 26 (1993) (drugs concealed between a couch and a wall are not in plain view).  Furthermore, it can not reasonably be argued that your client “constructively possessed” the drugs hidden in the apartment.  To demonstrate constructive possession it must be shown that a person exercised “dominion or control” over the property by a sufficient level of control over the area in which the contraband is found.  See, e.g., People v. Manini, 79 N.Y.2d 561 (1992).  There is no evidence that your client resided in the location; had keys to the location; or had any personal property in the location.  Further, since the evidence will likely show that other persons had access to the location and the drugs were hidden, a viable theory of constructive possession will not stand.  People v. Vasquez, 160 A.D.2d 751 (2d Dept. 1990) (constructive possession not established where defendant was watching television in the living room of an apartment where 4 ounces of cocaine and $150,000 in cash were discovered in a bedroom pursuant to a search warrant, despite the defendant having a loose key to the apartment in her possession); People v. Webb, 179 A.D.2d 707 (2d Dept. 1992); People v. Bailey, 159 A.D.2d 1009 (4^th Dept. 1990). 

 Based upon the foregoing, one can certainly make a viable argument that the search warrant and discovery of contraband does not confer probable cause to arrest a visitor on the circumstances described.  Still, it may not be a winning argument and one will find far stronger footing in a False Arrest claim if the “unlawful” arrest took place in a public, rather than private, forum.

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.