New York State Court of Claims

New York State Court of Claims

CHURCH v. THE NEW YORK STATE THRUWAY AUTHORITY, #2003-032-107, Claim No. 92341, Motion No. M-67556


Spoliation did not occur where the evidence that was destroyed was never in claimants' possession and resulted in no unfair advantage for claimants.

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:
Thorn and Gershon, Esqs.By: Arthur H. Thorn, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Dennis M. Acton, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 7, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The events giving rise to this claim and the course of litigation at this point, which is several weeks before trial, are set forth in detail in a companion motion, Motion No. M-67557, issued a few days ago.

In a letter received October 14, 2003, Charles T. Randall, Esq., an attorney employed by defendant New York State Thruway Authority ("Authority"), informed the Court that there were several issues which, in his opinion, needed to be addressed before this case proceeded to trial. At the October 20 conference, the Court gave permission for defendant to bring an expedited motion for summary judgment in order to resolve two of those issues prior to trial.

This issue arises because defendant has not been able to view and examine some parts of the automobile in which claimants were riding. According to Thruway employee George R. Gaborow, the vehicle which he and the Authority's accident reconstructionist examined was "only a shell and had been stripped of key components" (Gaborow affidavit, ¶7). It is necessary for these components to be examined, he contends, because they "may establish that the forceful impacts which led to claimant's injuries may have occurred prior to the vehicle's encounter with the ‘toe of slope'" (id. ¶ 10). In other words, defendant seeks to prove that the most serious impact occurred on the road level, where the missing guide rail section would have made no difference, rather than at the bottom of the slope, which the automobile reached because the guide rail was missing. The fact that some parts of the automobile are missing, he maintains, is chargeable to claimants because they "knew or should have known and reasonably should be deemed to have known that the vehicle with all its parts would be a key item of evidence if litigation were pursued by them in this accident" (id. ¶16).

Counsel for claimants recounts what happened to the vehicle after the accident. The car, a 1992 Volkswagen Jetta, had been leased by Mr. and Mrs. Church from Volkswagen Credit, Inc. ("VCI"). Pursuant to the terms of the lease agreement (Thorn affidavit, Exhibit B), they obtained an insurance policy on the car, in this case from American Protective Insurance, a Kemper National Insurance Group company. Also pursuant to the lease agreement, claimants arranged for the policy to list VCI as an "additional insured and loss payee," and they assigned to VCI any money received for the vehicle from the insurer, as well as the rights to "receive and/or collect money paid under such insurance, [to] endorse checks or drafts relating to such payment, [to] cancel the insurance, or [to] settle or release any claim with respect to the insurance" (id. page 1 & Provision J). The lease agreement does not state what is to be done with the vehicle in the event that it is damaged beyond repair, but in such circumstance, VCI is obliged to provide, and the leasee is obliged to accept, a replacement vehicle (id. Provision K).

Following the December 1992 accident, the insurer took possession of the car and, several months later, sold it to Post Brothers Auto Parts, Inc., a salvage business. When counsel's office was retained in the fall of 1995, they began to trace the vehicle. Eventually finding it on the Post Brothers' lot, counsel's office purchased "what remained of it . . . ‘as is'" on May 1, 1996 (Thorn affidavit, ¶14). That portion of the vehicle has been retained by counsel and has been available for inspection by defendant since that time.

Claimants' counsel is aware of only one inspection made by an Authority employee, on September 15, 1998. Furthermore, neither party alludes to any demand, or even a less formal request, on the part of defendant to inspect or at least learn the location of any parts or components that were missing. In an August 1999 letter, written around the time that the parties agreed to a conditional dismissal, defense counsel stated to his opponent:
We understand that as a precondition for this stipulation that you will preserve, until the Court of Claims action is finally terminated, claimant's vehicle and all its parts, whether attached or unattached, that are now or have in the post-accident period been in the custody or control of claimants, their agents, attorneys, potential or actual witnesses on behalf of claimant, as well as all information concerning the whereabouts of parts not in the custody or control of claimants or the aforesaid witnesses and agents.
It is apparent, therefore, defendant has been aware that parts are missing since its only inspection of the vehicle in 1998. If, as is now asserted, those parts were so critical to the Authority's defense, the time to make a motion based on alleged spoliation would have been before the claim was conditionally discontinued or immediately upon its reinstatement. At the very least, defendant should have demanded production of those parts and components. The July 7, 2003 conference specifically addressed any outstanding discovery, and at that conference only the CPLR 3101(d) responses and the possibility of a follow-up IME were mentioned by either party.

The short answer to this argument, therefore, is very simple: discovery is closed and has been closed for some time. Because defendant made no further demand after examining the vehicle's remains in 1998, other than the 1999 "demand" that claimants retain the vehicle and any information as to the whereabouts of missing parts, claimants have had no obligation to produce the parts, to try to locate them, or to defend the fact that the automobile was not secured until several years after the accident. A statement made by the Authority's attorney in the companion motion, to the effect that at the October 20 conference, the Court informed the parties "that discovery is not closed unless specifically prohibited by the Court," is simply incorrect and, in fact, is directly contrary to what the Court did state. (Motion No. M-67557, Affidavit in Opposition of Charles T. Randall, Esq., ¶47). While the Court acknowledged that it certainly had the power either to prohibit discovery or to direct the reopening of discovery at almost any point in the course of litigation, the parties had stated at the July 7, 2003 conference that there were only three items remaining: 1) service of claimants' CPLR 3101(d) response, (2) service of defendant's CPLR 3101(d) responses, and 3) an updated IME if defendant wished to obtain one. It was surprising, therefore, to be asked at the October 20, 2003 conference whether discovery was still open. The only item that was outstanding at that time was defendant's expert disclosure, and despite the question, there was no formal request by either party for additional disclosure. In any event, if there had been such a request, it is highly unlikely that the Court would have re-opened discovery unless the trial was adjourned. It was made quite clear that there would be no adjournment.

Even if this branch of the motion had been brought at a more appropriate time, it would not be successful. In determining whether a party violated a duty to preserve evidence, one critical question is whether there was a pending lawsuit at the time of the destruction or loss (see, e.g., Sage Realty Corporation v Beatty Proskauer Rose, LLP, 275 AD2d 11, lv denied 96 NY2d 937 [destruction of tapes shortly after receiving discovery demands]; [1st Dept 2000]; Conderman v Rochester Gas & Electric Corp., 262 AD2d 1068, 1070 [4th Dept 1999]). However, a plaintiff (or claimant) may have a duty to preserve evidence in its possession or control prior to commencing a lawsuit when that party "‘should have known that the destroyed evidence was relevant to pending, imminent or reasonably foreseeable litigation'" (State of New York v International Fidelity Insurance Co., 181 Misc 2d 595, 599 [Sup Ct, Albany Co. 1999], quoting Shaffer v RWP Group Inc., 169 FRD 19, 24 [EDNY 1996]). In the instant situation, it is doubtful that Mr. and Mrs. Church were thinking about anything other than their severely injured son for a significant period of time following the accident.
Even more critical is the question of whether the party being charged with spoliation ever had possession of the evidence in question. In Abar v Freightliner Corp. (208 AD2d 999 [3d Dept 1994]), a truck driver sued the company that manufactured "his" truck after a grab rail affixed to the truck gave way. The truck actually belonged to the trucking service that employed plaintiff, and it was the employer who had had its own mechanic repair the truck, destroying part of the evidence in the process.
[Spoliation] sanctions have been applied where the plaintiffs had portions of the defective product in their possession, but lost them prior to allowing the defendant to inspect them and where plaintiffs had possession of the product and allowed it to be destroyed after their expert inspected it. This case is distinguishable in that plaintiffs never had possession of the truck or the bolts.
(id. at 1001-1002 [citations omitted]; accord, McLaughlin v Brouillet, 289 AD2d 461 [2d Dept 2001].) In the instant claim, the claimants had physical possession of the vehicle before the accident but did not own it. Pursuant to the lease agreement with VCI, it appears that once the vehicle was lost or damaged beyond repair, claimants had a right to only possess a replacement vehicle, but possession of the damaged vehicle and control over its location and disposition was vested in VCI and/or the insurance company, since VCI became, in effect, the insured.

Collateral Estoppel
As noted in the earlier motion decision, there was a related Supreme Court action in which claimants sued three private entities involved in the overall construction project or the specific job of installing the guide rail. Two of the defendants settled with claimants, but the sub-contractor who installed the guide rail, San Juan Construction and Sales Co. ("San Juan"), did not settle. Prior to trial San Juan moved for summary judgment dismissing the complaint against it, and this motion was denied by Supreme Court. While that decision was being appealed, the matter proceeded to trial. On April 11, 2001, the jury found San Juan 10 percent responsible for claimant's injuries and calculated claimants' total damages as the sum of $6,815,925.75 (Acton affidavit, Exhibit D). No judgment was ever entered as a result of the jury verdict, however, possibly because post-trial motions were being prepared. Whatever the reason, no judgment incorporating this verdict was entered.

On July 5, 2001, less than three months after completion of the trial, the Appellate Division, Third Department reversed the trial court's earlier decision on San Juan's motion for summary judgment and, accordingly, dismissed the complaint against San Juan (Church ex rel. Smith v Callanan Industries, 285 AD2d 16). Dismissal of the complaint was later affirmed by the Court of Appeals in November 2002 (99 NY2d 104 [Nov. 19, 2002]). On January 18, 2002, in order to make the decision "final" for purposes of obtaining review by the Court of Appeals, a judgment was entered which dismissed the complaint against San Juan "on the merits and without costs" and declared that all cross claims and counterclaims were extinguished and dismissed. This is the only judgment that was entered in connection with the Supreme Court action.

In the present case, defendant contends that claimants are collaterally estopped from retrying the issue of damages in the Court of Claims. Defendant argues that the amount of claimants' damages was fixed by the Supreme Court jury, therefore this Court could assign no higher value for damages. According to defendant, the amounts received from the two settlements have already resulted in a total recovery that was greater than the $6.8 million figure set by the jury, and therefore claimants have no viable claim because no additional award can be made.

The related doctrines of res judicata, collateral estoppel, and law of the case are designed to limit relitigation of issues and are applicable only when the party being estopped had a "full and fair" opportunity to litigate the initial determination (People v Evans, 94 NY2d 499, 502 [2000]). To invoke the doctrine of collateral estoppel, it must also be established that "the identical issue was necessarily decided in the prior litigation" (Pratt v State of New York, 181 Misc 2d 488, 490 [Ct Cl 1999]). The judgment that is sought to be used against a party must be a final judgment and it must have been on the merits.

There is no dispute that the issue of claimants' total damages in the instant claim is identical to the same issue in the Supreme Court action (Gilberg v Barbieri, 53 NY2d 285, 292, 441 NYS2d 49, 423 NE2d 807). It also appears that most, possibly all, of the tests to determine whether a party had a full and fair opportunity to litigate an issue are satisfied in this instance (see generally, Siegel, New York Practice, 3d ed, §467). Nor is there any dispute that the jury's decision as to the amount of damages was "on the merits."

What is missing, however, is the most basic requirement of all: that there be a final judgment fixing the amount of claimants' damages at $6,815,925.75. Only if such a judgment exists can claimants be barred from relitigating the issue of damages in the instant claim.

Defendant insists that the jury's determination of damages is entitled to collateral estoppel effect because, unlike the situation presented in Towne v Asadourian (277 AD2d 800 [3d Dept 2000]), a final judgment was entered in this action. The Authority's attorney sums up the situation as follows:
Here, there was a final judgment which was recognized by the Court of Appeals as a final judgment and so noted in its decision. The Judgment followed a full trial ending with a special verdict duly filed by the Court Clerk.
(Randall reply affidavit, ¶6). It is true that the Court of Appeals decision references the "final judgment entered at Supreme Court" and that that judgment, which was entered on January 18, 2002, "followed" issuance of the special verdict in the sense that it occurred "after" that event, which occurred on April 11, 2001. Curiously, however, counsel never refers to the content of that judgment or to the issues that it finally determined. The decretal portion of the judgment is unambiguous:
[It is] ORDERED, ADJUDGED AND DECREED, that the complaint is dismissed against defendant San Juan Construction and Sales Company, on the merits without costs; and it is further
ORDERED, ADJUDGED AND DECREED, that all cross claims and counterclaims for indemnity, contractual and/or common law, contribution by and among all the defendants and third-party defendants are extinguished and dismissed without costs.
If claimants had sought to recover the same cause of action against San Juan in another court, this judgment could be used to prevent such a suit, because it finally dismisses that cause of action on the merits. It cannot be used, however, to prevent relitigation of an entirely different issue – the amount of claimants' damages – that was not incorporated in, enforced, or decided by the judgment in question. For perhaps obvious reasons, research has failed to disclose any authority for the proposition that in order for relitigation of an issue to be barred by the doctrine of collateral estoppel, the final judgment on which reliance is placed must decide that issue, not some other, unrelated issue. If it is necessary to articulate this rather obvious truth, the Court does so here. In the instant situation, determining whether the claimants had a viable cause of action against San Juan did not finally determine the issue of the amount of damages claimants would have been awarded if the cause of action were viable.

For the reasons set forth above, both branches of defendant's motion for summary judgment are denied.

November 7, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for summary judgment in its favor:

1. Notice of Motion and Memorandum with Exhibits of Dennis M. Acton, Esq., AAG., with annexed Exhibits, and annexed affidavit of George R. Gaborow, P.E.

2. Affidavit in Opposition of Arthur H. Thorn, Esq., with annexed Exhibits

3. Reply Affidavit of Arthur H. Thorn, Esq.

4. Reply Affidavit of Charles Randall, Esq.

Filed papers: Claim; Answer