Preview
FILED: NEW YORK COUNTY CLERK 07/16/2020 12:06 PM INDEX NO. 155973/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/16/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------- -------------------------------------------------------X
IAN MACDONALD, JAMES ROBERTS and BETH ANN
CASSIDY-ROBERTS, Index No.: 155973/2017
Plaintiffs,
-against- AFFIRMATION IN
OPPOSITION TO
TURNER CONSTRUCTION COMPANY and THE NEW MOTION FOR
YORK AND PRESBYTERIAN HOSPITAL a.k.a. THE SUMMARY
SOCIETY OF THE NEW YORK HOSPITAL, JUDGMENT
Defendants.
---------------------------------------------------------------------------X
TURNER CONSTRUCTION COMPANY and THE NEW Index No.: 595317/2019
YORK AND PRESBYTERIAN HOSPITAL,
Third-Party Plaintiffs,
-against-
PORT MORRIS TILE & MARBLE CORP.,
Third-Party Defendant.
-------------------------------------------------------------- ----X
PORT MORRIS TILE & MARBLE CORP., Index No.: 595549/2019
Second Third-Party Plaintiff
-against-
TEXRON COMMERCIAL AUTO BODY WORKS, INC.,
Second Third-Party Defendant.
--------------------------------- -------------------X
HOWARD B. ALTMAN, an attorney duly admitted to practice law before the Courts of
the State of New York, affirms the following to be true under penalties of perjury:
1. I am associated with the law firm of CASCONE & KLUEPFEL, LLP, attorneys
for Third-Party Defendant/Second-Third-Party Plaintiff, PORT MORRIS TILE & MARBLE
CORP., ("Port Morris") and as such, I am fully familiar with the facts and circumstances of this
matter.
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2. I respectfully submit this affirmation in opposition to Second Third-Party
Defendant TEXRON COMMERCIAL AUTO BODY WORKS, INC's. ("Texron") motion for
summary judgment seeking to dismiss Port Morris's Second Third Party Complaint, and/or to
dismiss Port Morris's Second Third Party Complaint/preclude Port Morris from offering
evidence based upon alleged spoliation of evidence.
3. To avoid the undue reproduction of documents, we respectfully incorporate the
exhibits attached to the moving affirmation of Texron's counsel, Curtis Gilfillan ("Gilfillan
Aff.").
Summary of Argument
4. This action arises out of an incident that occurred on June 13, 2017 in which two
construction workers claim to have been injured when the lift gate of a truck, which lift gate
had been repeatedly repaired by Texron, broke and gave way, causing the workers to fall from
the truck and to be struck by stone tile that had been loaded in the truck. (Gilfillan Aff. $3).
5. This is not the typical summary judgment or spoliation motion where a party is
alleged to have caused an accident, but had no opportunity to inspect the condition causing the
accident. Texron itself repaired the lift gate on at least 12 (twelve) occasions, the last time a
mere two weeks before subject incident. (Gilfillan Aff. ¶ 6).
6. Moreover, Texron was given the opportunity to obtain the information it seeks
about the repair history of the truck and the like when Port Morris subpoenaed the non-party
deposition of its former employee, Anthony Vespa. Texron refused to permit the deposition to
proceed. That Texron refused to permit sworn testimony does not mean it was denied the
information.
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7. Texron's motion is, in essence, an attempt at burden shifting. Texron has not
been deposed or produced any evidence, and rather than submit any evidence that it repaired
the lift gate properly, it argues that because Port Morris is out business and can't locate/produce
certain additional records, that Port Morris cannot prevail. (See Gilfillan Aff. ¶ 5). However, it
is Texron that bears the burden of proof on summary judgment, and its motion, devoid of
evidence as to what work Texron performed on the truck, and whether such work was proper,
fails to meet that burden.
8. There are a score of issues left unaddressed in Texron's motion that have
nothing to do with whatever written records Port Morris may have possessed, including: how
Texron repaired the lift gate; why the lift gate needed to be repaired again and again by Texron;
and whether Texron, after the second repair, advised Port Morris that the lift gate still might be
dangerous. At the very least, the motion is premature and should be denied to permit Texron's
deposition to proceed.
9. Based upon the foregoing, and for the reasons set forth below, Texron's motion
should be denied.
Statement of Facts
10. Plaintiffs James Roberts and Ian Macdonald allege that they were injured on
June 13, 2017 while unloading stone tile from the lift gate of a truck, when the lift gate failed
and gave way, causing them to fall, and causing stone tile to fall and land on them (Gilfillan
Aff. ¶ 3, 19).
11. There had been an ongoing problem with the lift gate, and, as stated by Texron
itself, Texron repaired or attempted to repair "the lift gate in question on approximately a dozen
occasions from November of 2010 through May 26, 2017". (Gilfillan Aff. ¶ 6). Texron further
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concedes that it last attempted to repair the lift gate on May 8, 2017 and again on May 26,
2017, mere weeks before the June 2017 incident. (Gilfillan Aff. ¶ 6).
Outstanding Discovery
12. Neither Texron nor Port Morris have been deposed.
13. Port Morris subpoenaed the non-party deposition of its former employee,
Anthony Vespa. Texron refused to permit the deposition to proceed, claiming that it would not
question Mr. Vespa unless it received invoices and the like that Port Morris no longer had
14. Texron has not produced its service/repair records for the subject truck. In fact,
even on the current motion, it relies upon records produce by Port Morris. (Gilfillan Aff. ¶ 14).
13. This fact is crucial, because Texron argues that "per all records disclosed [by
Port Morris], Texron did not perform any welding work on the truck or lift gate in question
accident."
between the prior accident and the instant (Gilfillan Aff. ¶ 14).
14. Port Morris would not have any idea of the specific methods Texron employed
to repair the lift gate, and has no idea whether Texron's invoices would reflect that work. Did
Texron weld the lift gate? Did it bolt the lift gate? Why was the May 9, 2017 repair insufficient,
or otherwise require Texron to repair the lift gate again on May 26, 2017? Texron would
know, but it produced no witness, either before its motion (via deposition) or even with the
motion via affidavit.
15. While it is true that Port Morris was forced to sell the subject truck as part of
proceedings (Gilfillan Aff. that does not mean that - either Port
bankruptcy ¶ 17), testimony by
Morris or Texron - cannot shed light on the condition of the lift nor does it relieve Texron
gate,
of its obligation to produce its own evidence and testimony, particularly if it seeks summary
judgment.
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Point I
Texron's Motion for Summary Judgment
Must be Denied
A. Legal Standard
16. The party moving for summary judgment must make a prima facie showing of
entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the
absence of a triable issue of fact. Myerez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d
923 (1986).
17. The movant's failure to make a prima facie showing of entitlement to judgment
as a matter of law "requires a denial of the motion, regardless of the sufficiency of the opposing
papers", and it is only if the movant succeeds in making this showing that the burden shifts to
the party opposing the motion. Ferluckaj v. Goldman Sachs & Co., 12 N.Y.3d 316, 321, 908
N.E.2d 869, 871-72 (2009). See also; Collymore v. 1895 WWA, LLC, 113 A.D.3d 720, 722,
978 N.Y.S.2d 367, 369 (2d Dep't 2014) (As the movant failed to make a prima facie showing of
entitlement to summary judgment on Law § 240(1) claim, the Supreme Court properly denied
the motion, regardless of the sufficiency of the opposition papers).
attorneys'
18. An affirmation is insufficient to entitle a party to summary judgment.
Jeune v. O.T. Trans Mix Corp., 29 A.D.3d 635, 815 N.Y.S.2d 182 (2d Dept. 2006)
defendants'
(Attorney's affirmation was insufficient to meet initial burden on motion
for summary judgment.). See also Johannsen v. Rudolph, 34 A.D.3d 338, 824 N.Y.S.2d 276
(1st Dep't 2006); Barcov Holding Corp. v. Bexin Realty Corp., 16 A.D.3d 282, 792 N.Y.S.2d
(l" Dep'
408 2005).
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19. In considering a motion for summary judgment, the Court reviews the record in
the light most favorable to the non-moving party. Stukas v. Streiter, 83 A.D.3d 18, 22-23, 918
N.Y.S.2d 176, 180 (2d Dep't 2011).
B. Texron Failed to Meet its Burden of Proof
20. A repair shop has a duty to its customer to properly perform its work, and can be
held liable to the customer a third party is injured, and this issue is not usually resolved on
(lSt
summary judgment. Bah v. Benton, 92 A.D.3d 133, 936 N.Y.S.2d 181 Dept.
2012)(Whether repair shop's negligence, in allegedly failing to properly service truck , was
proximate cause of collision, or whether truck driver's negligence was issue for trier of fact, not
properly resolved by court as matter of law.). See also Salisbury v. Montgomery Ward Store
#¥2623, 283 A.D.2d 858, 727 N.Y.S.2d 176 (2d Dept.2001) (negligent repair shop was liable
for accident which occurred when tire fell off).
21. Here, Texron did not meet its prima facie burden. It adduced no evidence of
what repairs it performed or how. It produced no witness, no document, nothing other than
Port Morris's records that Texron repaired the truck over a dozen times.
attorneys'
22. As to Texron's denial of liability, it produced only its affirmation/
and no affidavit as to what work it did or when. It adduced no evidence as to the condition of
the truck's lift gate after the May 26, 2017 repair, a glaring omission given the June 2017
accident. As Texron produced no witness or document establishing what work it did, let alone
that it did the work properly, it failed to meet its burden of proof and its motion must be denied
without regard to the opposition papers.
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23. Conversely, the evidence showed that Texron attempted to repair the left gate at
least twice in the month before the accident, but that the lift gate repeatedly failed. As such,
Texron's motion for summary judgment must be denied.
Point II
Texron's Motion to Dismiss and/or
Preclude Evidence Based upon Spoliation Must be Denied
24. The sanction of striking a pleading as a sanction for spoliation of evidence, even
where spoliation is proved, is drastic, and will be not imposed where a lesser penalty, such a
negative inference at the time of trial, would suffice. See Melcher v. Aoollo Med. Fund Mgt.
L.L.C., 105 A.D.3d 15, 959 N.Y.S.2d 133 (1st Dept.2013); Alleva v. United Parcel Serv.,
Inc., 112 A.D.3d 543, 978 N.Y.S.2d 32 (1st Dept.2013); McMahon v. Ford Motor Co., 34
(ISt
A.D.3d 263, 825 N.Y.S.2d 447 Dept. 2006).
25. Moreover, the fact that a party misplaces, sells, or even destroys evidence will
not support a finding of spoliation where the document or item allegedly destroyed is not the
"the sole source of the information and the sole means by which the defendant may establish its
defense."
Arbor Realty Funding, LLC v. Herrick, Feinstein LLP, 140 A.D.3d 607, 36 N.Y.S.3d
(1st
2 Dept. 2016) (Generally, dismissal of a complaint as a spoliation sanction is
warranted only where the spoliated evidence constitutes the sole means by which the defendant
can establish its defense, where the defense was otherwise fatally compromised, or defendant is
rendered prejudicially bereft of its ability to defend as a result of the spoliation). See also
(1st
Scholastic Inc. v. Pace Plumbing Corp., 129 A.D.3d 75, 8 N.Y.S.3d 143 Dept. 2015) (same)
(1St
Alleva v. United Parcel Serv., Inc., 112 A.D.3d 543, 978 N.Y.S.2d 32 Dept. 2013) (same).
26. Thus, in Scholastic, the First Department ruled that "to the extent [defendant]
established that plaintiffs repairman negligently discarded the coupling inextricably tied to the
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plumbing failure, a lesser sanction than dismissal (e.g. an adverse inference) might be
appropriate if sought at trial. The coupling itself is not the sole source of the information and
defense"
the sole means by which defendant can establish its that the coupling failed due to a
installation."
manufacturing defect rather than to negligent Scholastic 129 A.D.3d 75 at 88, 8
N.Y.S.3d 143, 153
(13t
27. In Alleva v. United Parcel Serv.. Inc., 112 A.D.3d 543, 978 N.Y.S.2d 32
Dept. 2013), the First Department ruled that a lesser sanction, such as adverse inference jury
instruction, rather than extreme sanction of dismissal of defendant's answer, was more
appropriate for defendant's spoliation of evidence, in failing to provide plaintiff with
employment file on its employee which it claimed no longer existed, where the file was not
sole source of information sought and sole means by which plaintiff could establish his claims.
28. Here, Texron alleges that Port Morris, when it was forced to file for bankruptcy
mechanics'
and cease it business, improperly disposed of invoices from other repairs to the
subject truck. even if such documents existed - and Texron has shown but
However, nothing
speculation to show that did - this is not the source of information about the truck's
they only
repair history: Texron could, and did, inquire at deposition about the repair history of the truck.
29. Moreover, Texon was given the opportunity to obtain the information it seeks
about the repair history of the truck and the like via the non-party deposition of its former
employee, Anthony Vespa. Texron refused to permit the deposition to proceed. Until and
unless Texon avails itself of sworn testimony that would advise it of the repair history of the
truck, it should not be heard to claim spoliation, simply because Port Morris no longer has
invoices showing how much those repairs cost.
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30. To the extent Texron claims that it can no longer inspect the truck, information
to establish Texron's likely defense, that it properly repaired the lift gate, is not something
solely within Port Morris's possession. Rather, Texron itself has or should have testimony and
records describing the condition of the truck pre-and-post repairs during the admitted dozen
times it repaired the truck. Texron should have information as to how it repaired the lift gate,
and whether its repairs were to be permanent or temporary. Texron's failure to produce any
such document or affidavit with its summary judgment motion should not warrant penalizing
Port Morris.
31. Finally, a court should not impose penalties for spoliation of evidence where
party sought to be penalized did not act maliciously in disposing of the evidence. Peters v.
(13t
Peters, 146 A.D.3d 503,
Preview
FILED: NEW YORK COUNTY CLERK 07/16/2020 12:06 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/16/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------- -------------------------------------------------------X IAN MACDONALD, JAMES ROBERTS and BETH ANN CASSIDY-ROBERTS, Index No.: 155973/2017 Plaintiffs, -against- AFFIRMATION IN OPPOSITION TO TURNER CONSTRUCTION COMPANY and THE NEW MOTION FOR YORK AND PRESBYTERIAN HOSPITAL a.k.a. THE SUMMARY SOCIETY OF THE NEW YORK HOSPITAL, JUDGMENT Defendants. ---------------------------------------------------------------------------X TURNER CONSTRUCTION COMPANY and THE NEW Index No.: 595317/2019 YORK AND PRESBYTERIAN HOSPITAL, Third-Party Plaintiffs, -against- PORT MORRIS TILE & MARBLE CORP., Third-Party Defendant. -------------------------------------------------------------- ----X PORT MORRIS TILE & MARBLE CORP., Index No.: 595549/2019 Second Third-Party Plaintiff -against- TEXRON COMMERCIAL AUTO BODY WORKS, INC., Second Third-Party Defendant. --------------------------------- -------------------X HOWARD B. ALTMAN, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under penalties of perjury: 1. I am associated with the law firm of CASCONE & KLUEPFEL, LLP, attorneys for Third-Party Defendant/Second-Third-Party Plaintiff, PORT MORRIS TILE & MARBLE CORP., ("Port Morris") and as such, I am fully familiar with the facts and circumstances of this matter. 1 of 13 FILED: NEW YORK COUNTY CLERK 07/16/2020 12:06 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/16/2020 2. I respectfully submit this affirmation in opposition to Second Third-Party Defendant TEXRON COMMERCIAL AUTO BODY WORKS, INC's. ("Texron") motion for summary judgment seeking to dismiss Port Morris's Second Third Party Complaint, and/or to dismiss Port Morris's Second Third Party Complaint/preclude Port Morris from offering evidence based upon alleged spoliation of evidence. 3. To avoid the undue reproduction of documents, we respectfully incorporate the exhibits attached to the moving affirmation of Texron's counsel, Curtis Gilfillan ("Gilfillan Aff."). Summary of Argument 4. This action arises out of an incident that occurred on June 13, 2017 in which two construction workers claim to have been injured when the lift gate of a truck, which lift gate had been repeatedly repaired by Texron, broke and gave way, causing the workers to fall from the truck and to be struck by stone tile that had been loaded in the truck. (Gilfillan Aff. $3). 5. This is not the typical summary judgment or spoliation motion where a party is alleged to have caused an accident, but had no opportunity to inspect the condition causing the accident. Texron itself repaired the lift gate on at least 12 (twelve) occasions, the last time a mere two weeks before subject incident. (Gilfillan Aff. ¶ 6). 6. Moreover, Texron was given the opportunity to obtain the information it seeks about the repair history of the truck and the like when Port Morris subpoenaed the non-party deposition of its former employee, Anthony Vespa. Texron refused to permit the deposition to proceed. That Texron refused to permit sworn testimony does not mean it was denied the information. 2 of 13 FILED: NEW YORK COUNTY CLERK 07/16/2020 12:06 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/16/2020 7. Texron's motion is, in essence, an attempt at burden shifting. Texron has not been deposed or produced any evidence, and rather than submit any evidence that it repaired the lift gate properly, it argues that because Port Morris is out business and can't locate/produce certain additional records, that Port Morris cannot prevail. (See Gilfillan Aff. ¶ 5). However, it is Texron that bears the burden of proof on summary judgment, and its motion, devoid of evidence as to what work Texron performed on the truck, and whether such work was proper, fails to meet that burden. 8. There are a score of issues left unaddressed in Texron's motion that have nothing to do with whatever written records Port Morris may have possessed, including: how Texron repaired the lift gate; why the lift gate needed to be repaired again and again by Texron; and whether Texron, after the second repair, advised Port Morris that the lift gate still might be dangerous. At the very least, the motion is premature and should be denied to permit Texron's deposition to proceed. 9. Based upon the foregoing, and for the reasons set forth below, Texron's motion should be denied. Statement of Facts 10. Plaintiffs James Roberts and Ian Macdonald allege that they were injured on June 13, 2017 while unloading stone tile from the lift gate of a truck, when the lift gate failed and gave way, causing them to fall, and causing stone tile to fall and land on them (Gilfillan Aff. ¶ 3, 19). 11. There had been an ongoing problem with the lift gate, and, as stated by Texron itself, Texron repaired or attempted to repair "the lift gate in question on approximately a dozen occasions from November of 2010 through May 26, 2017". (Gilfillan Aff. ¶ 6). Texron further 3 of 13 FILED: NEW YORK COUNTY CLERK 07/16/2020 12:06 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/16/2020 concedes that it last attempted to repair the lift gate on May 8, 2017 and again on May 26, 2017, mere weeks before the June 2017 incident. (Gilfillan Aff. ¶ 6). Outstanding Discovery 12. Neither Texron nor Port Morris have been deposed. 13. Port Morris subpoenaed the non-party deposition of its former employee, Anthony Vespa. Texron refused to permit the deposition to proceed, claiming that it would not question Mr. Vespa unless it received invoices and the like that Port Morris no longer had 14. Texron has not produced its service/repair records for the subject truck. In fact, even on the current motion, it relies upon records produce by Port Morris. (Gilfillan Aff. ¶ 14). 13. This fact is crucial, because Texron argues that "per all records disclosed [by Port Morris], Texron did not perform any welding work on the truck or lift gate in question accident." between the prior accident and the instant (Gilfillan Aff. ¶ 14). 14. Port Morris would not have any idea of the specific methods Texron employed to repair the lift gate, and has no idea whether Texron's invoices would reflect that work. Did Texron weld the lift gate? Did it bolt the lift gate? Why was the May 9, 2017 repair insufficient, or otherwise require Texron to repair the lift gate again on May 26, 2017? Texron would know, but it produced no witness, either before its motion (via deposition) or even with the motion via affidavit. 15. While it is true that Port Morris was forced to sell the subject truck as part of proceedings (Gilfillan Aff. that does not mean that - either Port bankruptcy ¶ 17), testimony by Morris or Texron - cannot shed light on the condition of the lift nor does it relieve Texron gate, of its obligation to produce its own evidence and testimony, particularly if it seeks summary judgment. 4 of 13 FILED: NEW YORK COUNTY CLERK 07/16/2020 12:06 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/16/2020 Point I Texron's Motion for Summary Judgment Must be Denied A. Legal Standard 16. The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of a triable issue of fact. Myerez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986). 17. The movant's failure to make a prima facie showing of entitlement to judgment as a matter of law "requires a denial of the motion, regardless of the sufficiency of the opposing papers", and it is only if the movant succeeds in making this showing that the burden shifts to the party opposing the motion. Ferluckaj v. Goldman Sachs & Co., 12 N.Y.3d 316, 321, 908 N.E.2d 869, 871-72 (2009). See also; Collymore v. 1895 WWA, LLC, 113 A.D.3d 720, 722, 978 N.Y.S.2d 367, 369 (2d Dep't 2014) (As the movant failed to make a prima facie showing of entitlement to summary judgment on Law § 240(1) claim, the Supreme Court properly denied the motion, regardless of the sufficiency of the opposition papers). attorneys' 18. An affirmation is insufficient to entitle a party to summary judgment. Jeune v. O.T. Trans Mix Corp., 29 A.D.3d 635, 815 N.Y.S.2d 182 (2d Dept. 2006) defendants' (Attorney's affirmation was insufficient to meet initial burden on motion for summary judgment.). See also Johannsen v. Rudolph, 34 A.D.3d 338, 824 N.Y.S.2d 276 (1st Dep't 2006); Barcov Holding Corp. v. Bexin Realty Corp., 16 A.D.3d 282, 792 N.Y.S.2d (l" Dep' 408 2005). 5 of 13 FILED: NEW YORK COUNTY CLERK 07/16/2020 12:06 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/16/2020 19. In considering a motion for summary judgment, the Court reviews the record in the light most favorable to the non-moving party. Stukas v. Streiter, 83 A.D.3d 18, 22-23, 918 N.Y.S.2d 176, 180 (2d Dep't 2011). B. Texron Failed to Meet its Burden of Proof 20. A repair shop has a duty to its customer to properly perform its work, and can be held liable to the customer a third party is injured, and this issue is not usually resolved on (lSt summary judgment. Bah v. Benton, 92 A.D.3d 133, 936 N.Y.S.2d 181 Dept. 2012)(Whether repair shop's negligence, in allegedly failing to properly service truck , was proximate cause of collision, or whether truck driver's negligence was issue for trier of fact, not properly resolved by court as matter of law.). See also Salisbury v. Montgomery Ward Store #¥2623, 283 A.D.2d 858, 727 N.Y.S.2d 176 (2d Dept.2001) (negligent repair shop was liable for accident which occurred when tire fell off). 21. Here, Texron did not meet its prima facie burden. It adduced no evidence of what repairs it performed or how. It produced no witness, no document, nothing other than Port Morris's records that Texron repaired the truck over a dozen times. attorneys' 22. As to Texron's denial of liability, it produced only its affirmation/ and no affidavit as to what work it did or when. It adduced no evidence as to the condition of the truck's lift gate after the May 26, 2017 repair, a glaring omission given the June 2017 accident. As Texron produced no witness or document establishing what work it did, let alone that it did the work properly, it failed to meet its burden of proof and its motion must be denied without regard to the opposition papers. 6 of 13 FILED: NEW YORK COUNTY CLERK 07/16/2020 12:06 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/16/2020 23. Conversely, the evidence showed that Texron attempted to repair the left gate at least twice in the month before the accident, but that the lift gate repeatedly failed. As such, Texron's motion for summary judgment must be denied. Point II Texron's Motion to Dismiss and/or Preclude Evidence Based upon Spoliation Must be Denied 24. The sanction of striking a pleading as a sanction for spoliation of evidence, even where spoliation is proved, is drastic, and will be not imposed where a lesser penalty, such a negative inference at the time of trial, would suffice. See Melcher v. Aoollo Med. Fund Mgt. L.L.C., 105 A.D.3d 15, 959 N.Y.S.2d 133 (1st Dept.2013); Alleva v. United Parcel Serv., Inc., 112 A.D.3d 543, 978 N.Y.S.2d 32 (1st Dept.2013); McMahon v. Ford Motor Co., 34 (ISt A.D.3d 263, 825 N.Y.S.2d 447 Dept. 2006). 25. Moreover, the fact that a party misplaces, sells, or even destroys evidence will not support a finding of spoliation where the document or item allegedly destroyed is not the "the sole source of the information and the sole means by which the defendant may establish its defense." Arbor Realty Funding, LLC v. Herrick, Feinstein LLP, 140 A.D.3d 607, 36 N.Y.S.3d (1st 2 Dept. 2016) (Generally, dismissal of a complaint as a spoliation sanction is warranted only where the spoliated evidence constitutes the sole means by which the defendant can establish its defense, where the defense was otherwise fatally compromised, or defendant is rendered prejudicially bereft of its ability to defend as a result of the spoliation). See also (1st Scholastic Inc. v. Pace Plumbing Corp., 129 A.D.3d 75, 8 N.Y.S.3d 143 Dept. 2015) (same) (1St Alleva v. United Parcel Serv., Inc., 112 A.D.3d 543, 978 N.Y.S.2d 32 Dept. 2013) (same). 26. Thus, in Scholastic, the First Department ruled that "to the extent [defendant] established that plaintiffs repairman negligently discarded the coupling inextricably tied to the 7 of 13 FILED: NEW YORK COUNTY CLERK 07/16/2020 12:06 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/16/2020 plumbing failure, a lesser sanction than dismissal (e.g. an adverse inference) might be appropriate if sought at trial. The coupling itself is not the sole source of the information and defense" the sole means by which defendant can establish its that the coupling failed due to a installation." manufacturing defect rather than to negligent Scholastic 129 A.D.3d 75 at 88, 8 N.Y.S.3d 143, 153 (13t 27. In Alleva v. United Parcel Serv.. Inc., 112 A.D.3d 543, 978 N.Y.S.2d 32 Dept. 2013), the First Department ruled that a lesser sanction, such as adverse inference jury instruction, rather than extreme sanction of dismissal of defendant's answer, was more appropriate for defendant's spoliation of evidence, in failing to provide plaintiff with employment file on its employee which it claimed no longer existed, where the file was not sole source of information sought and sole means by which plaintiff could establish his claims. 28. Here, Texron alleges that Port Morris, when it was forced to file for bankruptcy mechanics' and cease it business, improperly disposed of invoices from other repairs to the subject truck. even if such documents existed - and Texron has shown but However, nothing speculation to show that did - this is not the source of information about the truck's they only repair history: Texron could, and did, inquire at deposition about the repair history of the truck. 29. Moreover, Texon was given the opportunity to obtain the information it seeks about the repair history of the truck and the like via the non-party deposition of its former employee, Anthony Vespa. Texron refused to permit the deposition to proceed. Until and unless Texon avails itself of sworn testimony that would advise it of the repair history of the truck, it should not be heard to claim spoliation, simply because Port Morris no longer has invoices showing how much those repairs cost. 8 of 13 FILED: NEW YORK COUNTY CLERK 07/16/2020 12:06 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/16/2020 30. To the extent Texron claims that it can no longer inspect the truck, information to establish Texron's likely defense, that it properly repaired the lift gate, is not something solely within Port Morris's possession. Rather, Texron itself has or should have testimony and records describing the condition of the truck pre-and-post repairs during the admitted dozen times it repaired the truck. Texron should have information as to how it repaired the lift gate, and whether its repairs were to be permanent or temporary. Texron's failure to produce any such document or affidavit with its summary judgment motion should not warrant penalizing Port Morris. 31. Finally, a court should not impose penalties for spoliation of evidence where party sought to be penalized did not act maliciously in disposing of the evidence. Peters v. (13t Peters, 146 A.D.3d 503,