7-10 Filed papers: Claim, Answer, Claimant's Disclosure Request; Defendant's
After carefully considering the papers submitted and the applicable law the
motions are disposed of as follows:
Claimant asserts that Defendant's Answer should be stricken based upon the
alleged spoliation of evidence by Green Haven Correctional Facility (hereafter
Green Haven) officials. In his underlying claim, Claimant alleges he was
sexually assaulted on August 5, 2001 by a correction officer during a
strip-search procedure at the Special Housing Unit (hereafter SHU) of the
facility. He also alleges that his food tray was marked with an "X", singling
his tray out for the deposit of "...what appeared to be human semans
(sic)...." [Claim Number 105034]. In a second cause of action, Claimant
alleges incidents occurring on August 7, 2001 at Coxsackie Correctional Facility
(hereafter Coxsackie) SHU.
The Claim was filed with the Clerk of the Court on or about October 11, 2001,
and was received by the Attorney General's Office on October 9, 2001.
[Affirmation in Opposition, ¶2]. According to the Assistant Attorney
General, no Notice of Intention was served on that office prior to service of
the claim. [Id]. Claimant states that he submitted a disclosure request
to the Attorney General's office on or about January 20, 2002 [Affidavit in
Support, ¶3], and the Assistant Attorney General acknowledges having
received such a request on January 24, 2002. [Affirmation in Opposition,
¶2]. If the copy of the request filed in the Chief Clerk's Office on
February 6, 2002 is the request at issue - no copy of the request has been
appended to the moving papers - Claimant asked for a copy of a videotape "for
August 7, 2001 for Coxsackie....gallery morning meal distributins of claimant
(sic)." In the response to Claimant's request filed in the Chief Clerk's
Office on September 30, 2002, the Assistant Attorney General indicates "[n]o
such videotape exists."
Claimant asserts that "[i]n August, 2001, the Claimant filed an official
complaint to the Department of Correctional Services, Commissioner Glenn S.
Goord, complaining about the incident at the Green Haven Corr. Fac...."
[Claimant's Response to Defendant's Affirmation in Opposition, ¶3]. In
support of this assertion, he has appended a letter directed to him dated
September 6, 2001 from Deputy Commissioner Leclaire, who states in part: "I
forwarded your letter to Superintendent Greiner of Green Haven...for an
investigation. An investigation was conducted by Captain Haubert which included
staff interviews, a review of the unit log, and videotape. As a result of this
investigation, it has been determined you were frisked in accordance with
Directive #4910. Your property from your original cell was frisked and returned
to you and there were no distinguishing markings on any of the feed-up trays.
Therefore, I find your allegations to be without merit." [Ibid, Exhibit
"A"]. From this response, it is unclear what complaint was actually lodged
with respect to any incident at Green Haven, though it appears that a videotape
of some kind of some unknown location within the facility was reviewed.
In his Affirmation in Opposition the Assistant Attorney General states that
procedures at Green Haven include the regular recycling of SHU videotapes every
thirty (30) days "unless someone makes a specific demand for the tape or an
incident occurs requiring their preservation. Here, there was no unusual
incident that the facility was aware of, and no one made such a request within
the thirty day window. Thus, the tape was recycled in the normal course of
business and is no longer available." [Affirmation in Opposition, ¶ 2].
In order to prevail on a motion to strike Defendant's answer on this ground,
Claimant must demonstrate that the Defendant intentionally "...destroyed
physical evidence...it knew might be needed for future litigation, or that...[he
was] prejudiced by any of the defendant's actions." Abenante v Star Gas
Corporation, 278 AD2d 438 (2d Dept 2000). Claimant must show that the
intentional failure to preserve the evidence obtained defendant an "unfair
advantage." Gallo v Bay Ridge Lincoln Mercury, Inc., 262 AD2d 450 (2d
Dept 1999). Thus, the Second Department found, in an action to recover for
personal injuries based in part upon negligent repair of an automobile, that
the defendant's application for summary judgment based upon a plaintiff's
alleged spoliation of evidence was properly denied. [Id]. The Court said
that the destruction of the allegedly negligently repaired automobile was not
intentional, and no unfair advantage was obtained. [Id].
Similarly, the Second Department affirmed denial of a motion to strike the
defendant's answer, and for summary judgment, in a personal injury action.
Abenante v Star Gas Corporation
. The Court opined that the
plaintiffs had "...failed to demonstrate that the defendant disturbed or
destroyed physical evidence that it knew might be needed for future litigation,
or that they were prejudiced by any of the defendant's actions." [Id
, Popfinger v Terminix International Company Limited
, 251 AD2d 564 (2d Dept
In contrast, in an earlier case the First Department found that dismissal of a
third-party action alleging defective design of a street sweeper was warranted
as a sanction.
Squitieri v City of New York
, 248 AD2d 201 (1st Dept 1998). The third party plaintiff - the City of New
York - was found to have engaged in the spoliation of evidence by its
destruction of the street sweeper at issue, as well as others made by the
third-party defendant. Even more expansively, the First Department has said
that negligent destruction of evidence may result in sanctions for spoliation.
, Kirkland v New York City Housing Authority
, 236 AD2d
170 (1st Dept 1997)
; Mudge, Rose, Guthrie,
Alexander & Ferdon v Penguin Air Conditioning Corp.
, 221 AD2d 243 (1st
The Second Department appears to be less ready to sanction merely negligent
conduct, finding, for example, that only a defendant's deliberate dilatory
tactics with regard to discovery requests - which effectively forestalled any
ability plaintiff might have to institute a cause of action against others in
his personal injury lawsuit, warranted the sanction of dismissal.
DiDomenico v C&S Aeromatik Supplies, Inc., 252 AD2d 41 (2d Dept
1998). In that case plaintiff was injured while he was unloading a box of
caustic materials from a truck at his place of employment. These are all,
clearly, fact driven resolutions to particular situations.
In this case, the Court is not satisfied that there was any clear indication to
Green Haven that videotape of a frisk procedure done on this Claimant should be
preserved, given the routine recycling of such tapes by the facility. Even
assuming the letter from Deputy Commissioner Leclaire refers to a SHU videotape
Claimant now asserts is vital to his Claim, its recycling in the regular course
of the facility's procedures does not appear suspect given the context that the
investigation was terminated as far as Green Haven was concerned, and no Claim
had been filed in this Court as of then. There was no pending litigation.
Additionally, the January 20, 2002 discovery request, made after any applicable
videotape would have been recycled, is not particularly clear as to which
facility's tapes are requested: Coxsackie or Green Haven. It is difficult to
pinpoint any intentional conduct when the request itself is unclear.
Finally, the Court finds a distinction between cases where certain evidence
might be helpful - such as the purported evidence at issue here - and evidence
which, if lost, effectively precludes pursuit of a claim.
Accordingly, Claimant's motions to strike Defendant's Answer are in all