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

758
CA 11-00246
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.


DANIEL MARTINEZ, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

PADDOCK CHEVROLET, INC., DEFENDANT-RESPONDENT.


CELLINO & BARNES, P.C., BUFFALO (GREGORY V. PAJAK OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

SUGARMAN LAW FIRM, LLP, SYRACUSE (TIMOTHY J. PERRY OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Timothy
J. Walker, A.J.), entered July 19, 2010 in a personal injury action.
The judgment dismissed the complaint upon a jury verdict of no cause
of action.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff appeals from a judgment dismissing his
complaint in this personal injury action entered upon a jury verdict
of no cause of action. The action arises from an automobile accident
allegedly caused by faulty brakes in plaintiff’s vehicle. Plaintiff
had purchased the used vehicle from defendant approximately seven
weeks prior to the accident and, according to plaintiff, defendant
serviced the vehicle’s brakes 10 days before the accident based on
plaintiff’s complaints about the brakes. The complaint, as amplified
by the bill of particulars, alleged that defendant negligently
inspected the vehicle upon sale and thereafter negligently repaired
the vehicle’s brakes.

     Plaintiff contends that Supreme Court erred in giving an adverse
inference charge at trial based upon plaintiff’s failure to preserve
the vehicle following the accident so that it could be inspected by
defendant. We reject that contention. The vehicle was repossessed
while at the collision shop for at least one month after the accident
because plaintiff failed to make monthly payments to his lender. “New
York courts . . . possess broad discretion to provide proportionate
relief to the party deprived of . . . lost evidence, such as
precluding proof favorable to the spoliator to restore balance to the
litigation, requiring the spoliator to pay costs to the injured party
associated with the development of replacement evidence, or employing
an adverse inference instruction at the trial of the action” (Ortega v
                                 -2-                           758
                                                         CA 11-00246

City of New York, 9 NY3d 69, 76), “and an imposition of sanctions will
not be disturbed [a]bsent a clear abuse of discretion” (Merrill v
Elmira Hgts. Cent. School Dist., 77 AD3d 1165, 1166 [internal
quotation marks omitted]). Here, we perceive no abuse of the court’s
discretion in giving an adverse inference charge. While the vehicle
was still in plaintiff’s control at the collision shop following the
accident, plaintiff contacted an attorney, thus indicating an
awareness that the vehicle may be needed for litigation. Although
plaintiff preserved the vehicle’s rear brake hose, he failed to
preserve the sway bar, which he claimed was defective. Moreover, as
plaintiff’s expert witness acknowledged, the photograph of the
vehicle’s brake line and sway bar admitted in evidence at trial was
taken at the collision shop while the vehicle was lifted, which
altered the positioning of the brake line and the sway bar and the
space between them. In addition, defendant’s expert testified that
the photograph did not provide any indication of depth. We thus agree
with the court that the photograph was not an adequate substitute
either for the vehicle itself or for the sway bar, warranting the
adverse inference charge.

     Plaintiff further contends that the Honorable Timothy J. Walker,
who was serving as an Acting Supreme Court Justice (hereafter, trial
court), was precluded from giving an adverse inference charge because
Justice Michalek had previously denied defendant’s pretrial motion to
dismiss the complaint on spoliation grounds. In denying the pretrial
motion, Justice Michalek stated in his oral decision that, inter alia,
defendant had not “demonstrated any prejudice.” According to
plaintiff, that ruling constituted the law of the case and barred the
trial court from granting defendant’s request for an adverse inference
charge. We reject that contention. “The doctrine of law of the case
applies to the same question in the same case” (Tillman v Women’s
Christian Assn. Hosp., 272 AD2d 979, 980 [internal quotation marks
omitted]), and whether dismissal is warranted on spoliation grounds is
not the “same question” as whether an adverse inference charge at
trial is appropriate (id.). Indeed, the pretrial ruling that
dismissal was not warranted on spoliation grounds “was based on the
facts and law presented by the parties in that procedural posture, and
no more” (191 Chrystie LLC v Ledoux, 82 AD3d 681, 682), and that
pretrial ruling did not bar the trial court from determining at a
subsequent juncture of the litigation that a lesser sanction was
appropriate (see e.g. Rodriguez v 551 Realty LLC, 35 AD3d 221). Nor
does the doctrine of law of the case apply to the pretrial
determination of Justice Michalek that defendant failed to demonstrate
prejudice, inasmuch as the trial court’s determination to the contrary
was based on further evidence developed at trial, including the
testimony of the expert witnesses (see 191 Chrystie LLC, 82 AD3d at
682).

     We agree with plaintiff that the court erred in admitting in
evidence a document from his employment file because it contained
double hearsay and did not fall within an exception to the hearsay
rule (see generally Huff v Rodriguez, 45 AD3d 1430, 1431-1432; State
Farm Mut. Auto. Ins. Co. v Langan, 18 AD3d 860, 862–863). We
conclude, however, that such error is harmless inasmuch as the hearsay
                                 -3-                          758
                                                        CA 11-00246

statements did not bear on the issue of defendant’s negligence (see
Christopher v Coach Leasing, Inc., 66 AD3d 1522; Evans v Newark-Wayne
Community Hosp., Inc., 35 AD2d 1071). Finally, plaintiff’s contention
that the court erred in admitting evidence of his post-accident drug
use is raised for the first time on appeal and thus is not properly
before us (see Ciesinski v Town of Aurora, 202 AD2d 984, 985).




Entered:   June 17, 2011                       Patricia L. Morgan
                                               Clerk of the Court
