        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

106
CA 15-01168
PRESENT: WHALEN, P.J., SMITH, CENTRA, CARNI, AND SCUDDER, JJ.


FRANK J. MAHIQUES AND DIANNE MAHIQUES,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

COUNTY OF NIAGARA, ET AL., DEFENDANTS,
AND IGT, DEFENDANT-APPELLANT.


RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (R. ANTHONY RUPP, III, OF
COUNSEL), FOR DEFENDANT-APPELLANT.

BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from a revised final judgment of the Supreme Court, Erie
County (Joseph R. Glownia, J.), entered May 6, 2015 in a personal
injury action. The revised final judgment, among other things,
awarded plaintiffs the sum of $187,500.

     It is hereby ORDERED that the revised final judgment so appealed
from is unanimously vacated, the order entered July 10, 2012 is
vacated and the order entered March 22, 2012 is modified on the law by
vacating the sanctions imposed, the answer of defendant IGT is
reinstated, and plaintiffs are granted an adverse inference charge
against defendant IGT as a sanction for the spoliation of evidence,
and as modified the order is affirmed without costs in accordance with
the following memorandum: Plaintiffs commenced this action seeking
damages for injuries allegedly sustained by Frank J. Mahiques
(plaintiff) when he was struck by a pane of glass that fell from a
video slot machine at a casino. Plaintiffs moved, inter alia, to
strike defendant IGT’s answer as a sanction for spoliation with
respect to the destruction of the machine. Supreme Court granted the
motion and, as sanctions, struck IGT’s answer and granted plaintiffs
partial summary judgment on liability (March order). In a later order
(July order), the court denied IGT’s motion for, inter alia, leave to
renew its opposition to plaintiffs’ motion for spoliation sanctions.
IGT now appeals from the ensuing judgment, which brings up for review
the March order and the July order (see CPLR 5501 [a] [1]). We agree
with IGT that the court abused its discretion in its choice of
sanctions.

     Although we agree with plaintiffs that a spoliation sanction was
warranted, under the circumstances presented we conclude that the
court abused its discretion in striking IGT’s answer and granting
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                                                         CA 15-01168

plaintiffs partial summary judgment on liability. The accident
occurred on December 16, 2005, and plaintiff commenced this action in
2007 against the John Doe Corporation and several other defendants,
including the Seneca Nation of Indians, the Seneca Gaming Corporation,
and the Seneca Gaming Authority (collectively, casino defendants), who
owned and operated the casino at issue. The action was dismissed
against the casino defendants based on their sovereign immunity, which
is not at issue in this appeal. IGT was substituted as a defendant in
place of John Doe Corporation, and was served with the “supplemental
complaint” (complaint) in 2008, which alleged, inter alia, that IGT
negligently designed, manufactured, marketed, sold, and serviced the
subject machine. Plaintiffs did not request that IGT maintain the
condition of the subject machine until August 2010, however, and they
did not seek to examine it until 2011. IGT then informed plaintiffs
that the machine was one of several video slot machines that had been
removed from the casino in 2008 at the casino defendants’ request to
create more open space in the casino, and that the subject machine and
approximately 140 other machines were scrapped in the normal course of
business in June 2008.

     “ ‘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’ . . . ‘The
Supreme Court has broad discretion in determining what, if any,
sanction should be imposed for spoliation of evidence’ . . . It 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 party] was on notice that the evidence might be
needed for future litigation’ . . . The nature and severity of the
sanction depends upon a number of factors, including . . . the
knowledge and intent of the spoliator, the existence of proof of an
explanation for the loss of the evidence, and the degree of prejudice
to the opposing party” (Samaroo v Bogopa Serv. Corp., 106 AD3d 713,
714). Although a court may, as one of the possible sanctions for
spoliation of evidence, enter “an order striking out pleadings or
parts thereof” (CPLR 3126 [3]), “[g]enerally, striking a pleading is
reserved for instances of willful or contumacious conduct” (Dean v
Usine Campagna, 44 AD3d 603, 605). In instances in which a party
negligently loses or destroys evidence, the “party seeking a sanction
pursuant to CPLR 3126 such as . . . dismissal is required to
demonstrate that a litigant . . . negligently[] dispose[d] of crucial
items of evidence . . . before the adversary ha[d] an opportunity to
inspect them . . . , thus depriving the party seeking a sanction of
the means of proving his [or her] claim or defense. The gravamen of
this burden is a showing of prejudice” (Koehler v Midtown Athletic
Club, LLP, 55 AD3d 1444, 1445 [internal quotation marks omitted]; see
Simet v Coleman Co., Inc., 42 AD3d 925, 926).

     Here, we conclude that plaintiffs established that some sanction
is warranted because IGT negligently failed to preserve the machine,
but plaintiffs failed to show that the destruction of the machine was
intentional or contumacious, to warrant the sanctions imposed by the
court. To the contrary, the only evidence in the record concerning
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                                                         CA 15-01168

this issue is that IGT scrapped the machine in the normal course of
business, as part of the removal and destruction of a large number of
machines to create additional space in the casino. In addition, IGT
established that the machine was removed from the casino at the
request of the casino’s owners, who were no longer parties to this
action, which belies plaintiffs’ contention that IGT removed and
destroyed the machine for litigation purposes.

     Contrary to plaintiffs’ further contention, they failed to
establish that the machine was destroyed before they had an
opportunity to inspect it, and thus plaintiffs failed to establish
that the extreme sanctions of striking IGT’s answer and granting
plaintiffs partial summary judgment on liability against IGT were
warranted (see Koehler, 55 AD3d at 1445). The evidence in the record
establishes that plaintiffs did not request that the machine be
preserved or attempt to view it in the two years after the accident
and prior to the commencement of the action (see Piazza v Great Atl. &
Pac. Tea Co., 300 AD2d 381, 382; cf. Gitlitz v Latham Process Corp.,
258 AD2d 391, 391), nor did they do so in the ensuing year between
when the action was commenced and the machine was scrapped. Indeed,
plaintiffs did not seek to examine the machine for an additional two
years after IGT was joined as a defendant. Consequently, we conclude
that IGT’s destruction of the machine did not occur “before the
adversary ha[d] an opportunity to inspect” it (Koehler, 55 AD3d at
1445 [internal quotation marks omitted]; see Rios v Johnson V.B.C., 17
AD3d 654, 656; see also Russo v BMW of N. Am., LLC, 82 AD3d 643, 644).
Thus, although IGT was properly sanctioned because it was negligent in
failing to ensure that the machine was preserved once it was on notice
that it might be needed for litigation (see Iannucci v Rose, 8 AD3d
437, 438; DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, 53),
there is no evidence that it was destroyed before plaintiffs had an
opportunity to inspect it, to warrant the severe sanctions that the
court imposed.

     We also agree with IGT that the destruction of the machine did
not deprive plaintiffs of the ability to establish their causes of
action, and thus they did not make the requisite showing of prejudice
arising from the loss of the evidence to warrant the extreme sanctions
imposed by the court (see Koehler, 55 AD3d at 1445). We reject
plaintiffs’ contention that the destruction of the machine deprived
them of the ability to present a prima facie case on any of their
causes of action, most notably their strict products liability claim
based on a manufacturing defect. A necessary element of that claim is
that the product was defective when it left the manufacturer’s control
(see Rosado v Proctor & Schwartz, 66 NY2d 21, 25-26; Nichols v Agway,
Inc., 280 AD2d 889, 889-890; George Larkin Trucking Co. v Lisbon Tire
Mart, 210 AD2d 899, 900). Given the length of time from the
manufacturing date to the date of the accident, as well as the
additional length of time from the date of the accident to the date on
which plaintiffs first sought access to the machine, we conclude that
plaintiffs failed to establish that their ability to prove their case
was severely impaired by the destruction of the machine rather than by
the passage of time and the adjustments that were made to the machine
in the interim. Indeed, the evidence submitted by both parties with
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                                                         CA 15-01168

respect to the motion establishes that the machine was repaired
immediately after the accident, and thus “there was no possibility of
inspecting [the glass] as [it] had been installed at the time of the
accident” (Merrill v Elmira Hgts. Cent. Sch. Dist., 77 AD3d 1165,
1167). Furthermore, we note that, in addition to a video recording of
the glass falling on plaintiff, plaintiffs also possessed reports of
similar accidents involving identical machines in other locations.
Plaintiffs thus had available circumstantial evidence in support of
their manufacturing defect claim, which they may use in support of
that claim (see Speller v Sears, Roebuck & Co., 100 NY2d 38, 41-42).
That evidence may also be used by plaintiffs to attempt to establish
the remaining causes of action in the complaint. Thus, the level of
prejudice to plaintiffs based on the destruction of the machine was
not sufficiently “ ‘severe’ ” to warrant striking IGT’s answer and
granting plaintiffs partial summary judgment on liability (Kirschen v
Marino, 16 AD3d 555, 556).

     Instead, we conclude that, under the circumstances of this case,
“ ‘the court should have considered a less severe sanction, which we
now provide’ . . . We conclude that an adverse inference charge
against [IGT] is an appropriate sanction for the spoliation of
evidence” (Tomasello v 64 Franklin, Inc., 45 AD3d 1287, 1288; see
Koehler, 55 AD3d at 1445; Ifraimov v Phoenix Indus. Gas, LLC, 4 AD3d
332, 334; see generally Ortega v City of New York, 9 NY3d 69, 76), and
we therefore modify the March order accordingly.




Entered:   March 25, 2016                      Frances E. Cafarell
                                               Clerk of the Court
