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

879
CA 14-00370
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND LINDLEY, JJ.


DENISE D. SIMONEIT,
PLAINTIFF-APPELLANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MARK CERRONE, INC. AND JAMES A. FREEMAN,
DEFENDANTS-RESPONDENTS-APPELLANTS.


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

THE TARANTINO LAW FIRM, LLP, BUFFALO (ANN M. CAMPBELL OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (Kevin M. Dillon, J.), entered May 29, 2013. The order granted
in part and denied in part the motion of plaintiff for partial summary
judgment and granted the cross motion of defendants for leave to amend
their answer.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting that part of the motion
for partial summary judgment on the issue of defendants’ negligence,
denying that part of the motion seeking to dismiss the affirmative
defense of plaintiff’s culpable conduct and reinstating that defense,
and denying the cross motion, and as modified the order is affirmed
without costs.

     Memorandum: Plaintiff commenced this action seeking to recover
damages for injuries she allegedly sustained in a motor vehicle
accident. At the time of the accident, plaintiff was working as a bus
aide on a school bus. The bus was stopped and waiting to make a left
turn when it was struck by a payloader operated by defendant James A.
Freeman (Freeman) and owned by defendant Mark Cerrone, Inc. (Cerrone).
Plaintiff appeals and defendants cross-appeal from an order that,
inter alia, denied that part of plaintiff’s motion for partial summary
judgment on the issue of defendants’ negligence, granted that part of
the motion seeking dismissal of the affirmative defense of plaintiff’s
culpable conduct, and granted the cross motion of defendants for leave
to amend their answer to assert various affirmative defenses based
upon alleged brake failure.

     We agree with plaintiff that Supreme Court abused its discretion
in granting defendants’ cross motion, and we therefore modify the
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                                                         CA 14-00370

order accordingly. The motion was made seven months after plaintiff
had filed the note of issue and more than two years after she
commenced the action, yet defendants offered no excuse for their delay
in making the motion (see Simmons v Pierce, 39 AD3d 1252, 1252-1253;
Gross, Shuman, Brizdle & Gilfillan, P.C. v Bayger, 256 AD2d 1187,
1188). We further conclude that preclusion of the affirmative
defenses based on brake failure is warranted as a sanction for
spoliation (see Simmons, 39 AD3d at 1253). After the accident,
Cerrone replaced the payloader’s allegedly defective brake calipers
and discarded the old calipers. It is well established that courts
have “broad discretion in determining what, if any, sanction should be
imposed for spoliation of evidence,” and “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’ ” (Iannucci v Rose, 8 AD3d 437, 438). Here,
Freeman drove a 32,000-pound construction vehicle into a school bus
filled with children, several of whom were removed from the scene in
ambulances. Under those circumstances, we conclude that defendants
should have anticipated that litigation was likely (see New York City
Hous. Auth. v Pro Quest Sec., Inc., 108 AD3d 471, 473) and, therefore,
they were on notice that the brake calipers might be needed for future
litigation (see Iannucci, 8 AD3d at 438; DiDomenico v C & S Aeromatik
Supplies, 252 AD2d 41, 53). Because the calipers were “a crucial
piece of evidence with respect to the potential affirmative defense of
brake failure,” we conclude that denial of defendants’ cross motion to
amend their answer to include any such affirmative defense is the
appropriate sanction for their disposal of the brakes (Simmons, 39
AD3d at 1253 [internal quotation marks omitted]; see Cutroneo v Dryer,
12 AD3d 811, 813).

     We also agree with plaintiff that she is entitled to partial
summary judgment on the issue of defendants’ negligence, and we
therefore further modify the order accordingly. Vehicle and Traffic
Law § 1143 provides that “[t]he driver of a vehicle about to enter or
cross a roadway from any place other than another roadway shall yield
the right of way to all vehicles approaching on the roadway to be
entered or crossed.” Here, plaintiff met her initial burden on the
motion by establishing as a matter of law that “ ‘the sole proximate
cause of the accident was [Freeman]’s failure to yield the right of
way’ ” to the school bus in violation of section 1143 (Guadagno v
Norward, 43 AD3d 1432, 1433; see Garza v Taravella, 74 AD3d 1802,
1804). At the time of the accident, the school bus was lawfully
stopped on a public roadway, and the payloader collided with the
school bus after entering the roadway from a parking lot (see
Whitcombe v Phillips, 61 AD3d 1431, 1431). In opposition to the
motion, defendants failed to provide a nonnegligent explanation for
the accident (see Long v Niagara Frontier Transp. Auth., 81 AD3d 1391,
1392; see generally Zuckerman v City of New York, 49 NY2d 557, 562).
We agree with defendants, however, that the court properly denied that
part of plaintiff’s motion for summary judgment on the issue of
causation (see Monette v Trummer [appeal No. 2], 96 AD3d 1547, 1549).
In opposition to that part of the motion, defendants submitted an
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                                                         CA 14-00370

expert affirmation of a radiologist who opined that plaintiff was not
injured in the accident and that any spinal injuries were preexisting
and degenerative in nature, thereby raising an issue of fact with
respect to causation (see Zuckerman, 49 NY2d at 562).

     Finally, we agree with defendants that the court erred in
dismissing their affirmative defense of plaintiff’s culpable conduct,
and we therefore further modify the order by reinstating that
affirmative defense. CPLR 1411 provides that, “[i]n any action to
recover damages for personal injury . . . , the culpable conduct
attributable to the [plaintiff] . . . , including contributory
negligence . . . , shall not bar recovery, but the amount of damages
otherwise recoverable shall be diminished in the proportion which the
culpable conduct attributable to the [plaintiff] . . . bears to the
culpable conduct which caused the damages.” The statute encompasses
any culpable conduct that had a “substantial factor in causing the
harm for which recovery is sought” (Arbegast v Board of Educ. of S.
New Berlin Cent. Sch., 65 NY2d 161, 168 [emphasis added]). Here, as
the court found, there is no question that the sole proximate cause of
the accident was defendants’ negligence. Defendants contend, however,
that the injuries plaintiff allegedly sustained in the accident were
caused, in whole or in part, by her position on the bus, i.e., the
fact that she was kneeling or standing on the bus rather than sitting
in a seat, and they submitted an expert affirmation to that effect
(see Harrity v Leone, 93 AD3d 1204, 1206-1207; see generally DiCicco v
Cattani, 59 AD3d 660, 661; Warwick v Cruz, 270 AD2d 255, 255).




Entered:   November 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
