New York State Court of Claims

New York State Court of Claims

SANTOS v. THE STATE OF NEW YORK, #2002-029-216, Claim No. 102473, Motion No. M-64661


Spoliation of evidence - Court finds State disposed of relevant evidence after notice of intention was served. Court precludes State from offering evidence regarding condition of missing evidence.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
John D. B. LewisBy: Gary E. Divis, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Dewey Lee, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 23, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for an order striking defendant's answer and for partial summary judgment due to the alleged spoliation of evidence.

The claim, which was filed in the Office of the Chief Clerk on May 16, 2000, asserts that claimant who was then incarcerated at Fishkill Correctional Facility (hereinafter Fishkill) was injured at 2:52 p.m. on August 21, 1998 at the Fishkill Industrial Unit Paint Shop. The claim states that claimant was assigned to a job in the paint shop and that among his tasks he had to lift bed frames, weighing 20 to 50 pounds, to a hook attached to a pole which was affixed to unsecured blocks; that at the time of the incident, while lifting a bed frame onto the hook, the hook broke and the pole and the bed frame fell on claimant who sustained injuries to his back, leg and hand. The claim alleges that the State failed to provide claimant with a safe place to work; that the scene was inherently dangerous; that the hook, bed frame and pole structure were dangerous and that the State failed to inspect or regularly inspect the pole structure. The claim further asserts that claimant timely served a notice of intention upon the Attorney General on October 21, 1998.

Claimant's counsel, in his affirmation in support of this motion asserts that the paint frame apparatus needed to be inspected by an expert in order to determine how and why it failed, whether the defect was observable during routine maintenance, and to rule out alternative causes for the failure. He also asserts that at an early time in the case he learned from defendant's counsel that such inspection could not occur as the apparatus had been destroyed and that this destruction took place in January 1999 (see Affirmation of John D. B. Lewis, Paragraph 2). Mr. Lewis further avers that there are no photographs, videos or drawings of the paint shop apparatus as it existed on the date of the subject incident (see Affirmation, Paragraph 7).

In opposition to the motion, the State submitted an affirmation of counsel and the affidavit of John Fabian, the general foreman at Fishkill who works for Corcraft Industries, which is part of the New York State Department of Correctional Services. Mr. Fabian avers that within no more than one week after the accident the parts of the apparatus were discarded and that at that point there was no notice that the inmate was going to commence an action (see Fabian Affidavit, Paragraphs 2 and 3).

In reply to the State's opposition, claimant submitted a statement from one inmate and an affidavit from another indicating that the apparatus on which claimant was injured was destroyed in January or February 1999. In addition, Mr. Kono, an engineer employed by the defendant, testified at his deposition on October 11, 2001 that he went to Fishkill from his office in Albany in November 1998 and inspected the apparatus (see Transcript of Deposition attached to claimant's Motion).

The motion was originally returnable on March 13, 2002 and was adjourned at defendant's request, upon consent of claimant, to April 10, 2002. On May 8, 2002 the Court held a telephone conference with the parties and adjourned the motion to June 11, 2002 to hold an on-the-record hearing regarding the factual issues presented.

At the hearing it was established that there were three different apparatuses. The first was used until March 1998 when an inmate was injured; the apparatus was redesigned and replaced by what was referred to by the witnesses as "System 2" which was then replaced several weeks later by "System 3" which is the apparatus which fell on claimant.

At the conclusion of the hearing, the Court directed the State to produce mechanical or engineering quality drawings of "System 3" for claimant's expert to review, if an employee of defendant had sufficient knowledge to prepare such a drawing. By letter dated June 24, 2002, the State provided claimant and the Court with a copy of three mechanical drawings prepared pursuant to the Court's order. Claimant was then to provide an affidavit of an engineering expert indicating whether the drawings of "System 3" were sufficient for the expert to determine if the apparatus was improperly constructed and if the drawings were not sufficient, the reasons for such opinion.

By correspondence dated August 12, 2002, claimant submitted to the Court, in camera, the affidavit of a professional engineer. The Court was asked to seal the affidavit. The Court understands claimant's concern in this regard and orders the affidavit sealed. The expert concluded that the "System 3" drawings were flawed and not reliable evidence for him to determine if the apparatus was properly constructed.

The Court finds, upon review of the drawings of "System 3" provided by the State, that these drawings are not of mechanical or engineering quality and are really only schematic drawings. The Court accepts claimant's engineer's statement that the drawings are not reliable evidence for him to determine if the apparatus which fell on claimant was properly constructed.

The evidence adduced at the hearing held as part of this motion established that the apparatus which fell on claimant was destroyed by the State in January 1999 after claimant served defendant with a notice of intention to file a claim.

When 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 or, at the very least, preclude the party from offering evidence as to the destroyed product (Squitieri v City of New York, 248 AD2d 201). Spoliation sanctions are not limited to cases where the evidence was destroyed willfully or in bad faith, since a negligent loss of evidence can be just as fatal (Adrian v Good Neighbor Apt. Assocs, 277 AD2d 146; Squitieri v City of New York, supra; Mudge, Rose, Guthrie, Alexander & Ferdon v Penguin Air Conditioning Corp., 221 AD2d 243).

Here, there is no doubt in my mind that the apparatus was not intentionally destroyed or done in bad faith. It was destroyed as a result of the defendant's negligence. The Court is, therefore, unwilling to impose the ultimate sanction of striking the State's answer. However, the defendant is hereby precluded from offering at trial any evidence, testimonial or documentary, as to the condition of the apparatus prior to claimant's accident, nor may the State offer any expert testimony regarding the apparatus to refute claimant's proof (see, Adrian v Good Neighbor Apt. Assocs., 277 AD2d 146, supra [Court precluded defendants from offering exonerating evidence after disposing of radiator covers which allegedly caused lead poisoning]; see also, Yi Min Ren v Professional Steam-Cleaning, 271 AD2d 602 [Court precluded defendant from offering any evidence with respect to the condition of defendant's ladder from which plaintiff allegedly fell after the ladder was allegedly stolen from a job site]).

We now turn to claimant's motion for summary judgment. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegard v New York Univ. Med. Center, 64 NY2d 851, 853; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegard v New York Univ. Med. Center, supra, at p 853).

Claimant's affidavit submitted in support of the motion describes the apparatus upon which claimant hung the bed frame so he could paint the frames (see drawing of apparatus attached to Affidavit). Claimant states that the frames were held in place by hooks that were attached to a single bar. On this bar there were two sets of two hooks each, making a total of four hooks on the bar. This arrangement allowed him to suspend a bed frame on each pair of hooks so that two bed frames could be suspended and simultaneously painted. Each end of the bar rested on wooden blocks. The blocks were used to further elevate the hooks from the ground so that the frame bottoms could be painted. The bar was not attached to the blocks; it only rested on the top surface of the top block. In turn, the wooden blocks rested on but were not affixed to the bar. Claimant further asserts that on August 21, 1998, at about 2:52 p.m., as he was lifting a bed frame onto a hook, the hook broke, the blocks moved and the bar became dislodged and fell towards him. Then, the bed frame and bar fell on his neck and forced his right elbow into an oil drum. As a result, he sustained injuries (Claimant's Affidavit, Paragraphs 3 and 4).

While claimant's affidavit describes the apparatus and how the accident occurred, claimant, however, has offered no proof regarding the State's alleged negligent conduct.

The Court notes that the doctrine of res ipsa loquitur permits an inference of negligence to be drawn from the circumstances of the occurrence; it does not create a presumption in favor of claimant (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226). Before a case may be submitted on the theory of res ipsa loquitur, claimant must establish: (1) the event must be of a kind which ordinarily does not occur in the absence of negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the claimant (Corcoran v Banner Super Market, 19 NY2d 425, 430). Claimant has failed to meet this burden on the record before the Court. Therefore, the portion of the motion for summary judgment is denied.

Claimant's motion for sanctions as a result of defendant's spoliation of evidence is granted to the extent set forth and for summary judgment is denied.

The following papers were read and considered by the Court on claimant's motion for sanctions and for summary judgment:

Papers Numbered

Notice of Motion, Claimant's Affidavit,
Attorney's Affirmation and Exhibits Attached 1

Affirmation in Opposition and
Affidavit Attached 2

Reply Affirmation and Exhibits Attached 3

Drawings of "System 3" 4

Letter to Court from Claimant's Counsel
dated July 31, 2002 5

Affidavit of Claimant's Engineer (which
Court has sealed) 6

Letter to Court from Claimant's Counsel
dated September 17, 2002 7

Filed Papers: Claim and Answer

September 23, 2002
White Plains, New York

Judge of the Court of Claims