New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK , #2003-030-515, Claim No. 105034, Motion Nos. M-65996, M-65962


Pro se inmate's motion to strike Answer based on alleged spoliation of evidence by Green Haven Correctional Facility officials denied. Claimant did not establish defendant intentionally destroyed evidence it know might be needed for future litigation, or that he was prejudiced.

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):
M-65996, M-65962
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
February 13, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 10 were read on Claimant's motions numbered M-

65962 and M-65996 to strike Defendant's Answer, read together since they are the same motion

given two different motion numbers:

1,2 Notice of Motion, Affidavit in Support of Motion to Strike Answer by Johnathan Johnson, dated October 7, 2002, and accompanying exhibit (M-65962)

3,4 Notice of Motion, Affidavit in Support of Motion to Strike Answer by Johnathan Johnson, dated October 7, 2002 (M-65996)

  1. Affirmation in Opposition by Dewey Lee, Assistant Attorney General, dated December 6, 2002 and accompanying exhibits (M-65962; M-65996)
  1. Claimant's Response's (sic) to Defendant's Affirmation in Opposition dated December 9, 2002 and attached exhibit
7-10 Filed papers: Claim, Answer, Claimant's Disclosure Request; Defendant's Response

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 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 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, supra. 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]. See, also, Popfinger v Terminix International Company Limited Partnership, 251 AD2d 564 (2d Dept 1998).[1]

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. See, e.g., Kirkland v New York City Housing Authority, 236 AD2d 170 (1st Dept 1997)[2]; Mudge, Rose, Guthrie, Alexander & Ferdon v Penguin Air Conditioning Corp., 221 AD2d 243 (1st Dept 1995).[3]

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 respects DENIED.

February 13, 2003
White Plains, New York

Judge of the Court of Claims

[1] Sanctions against plaintiff for either intentional or negligent spoliation of evidence not warranted, in action brought against termite exterminator for property damage. Plaintiff repaired the damaged premises and discarded the damaged wood before commencing the action. The Court found that defendant had "failed to demonstrate that the plaintiff's action was an intentional attempt to hide or destroy evidence."
[2] Third-party defendant's motion to dismiss complaint against it - brought by New York City Housing Authority (NYCHA) some six years after underlying wrongful death action - granted as sanction for spoliation. In wrongful death action claiming NYCHA liable for plaintiffs' decedent's death in a fall from one of its buildings, plaintiffs alleged decedent was attempting to light a defective stove in the apartment, her clothes caught fire, and she ran through the apartment in flames, ultimately falling out the window. The third-party defendant, the installer of the stove, was brought in after the stove was removed from the apartment, at the plaintiffs' request, and after a discovery order allowing inspection of the stove by NYCHA - who never took the opportunity to inspect it - as well as inspection of the stove by plaintiffs' expert. "We have found dismissal to be a viable remedy for loss of a ‘key piece of evidence' that thereby precludes inspection (Mudge, Rose, Guthrie, Alexander & Ferdon v Penguin Air Conditioning Corp., 221 AD2d 243)." Ibid, at 173. Finding that NYCHA should have taken affirmative steps to preserve the evidence as a party defendant, the Court said it was "...estopped from disclaiming responsibility for the loss of the stove since it maintained records for the apartments and was aware of the pending litigation with these tenants and the importance of this piece of evidence." Ibid, at 174.
[3] Without saying what "key piece of evidence" was negligently lost, the First Department stated that dismissal of the amended complaint in an action alleging improper installation of an air conditioning system was warranted, based upon such negligent loss.