New York State Court of Claims

New York State Court of Claims

QUINN v. CITY UNIVERSITY OF NEW YORK, #2006-013-010, Claim No. 106481, Motion No. M-70620


Sanctions for spoliation of evidence.

REVERSED 43 AD3d 679 1st Dept 9/13/07

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:
Defendant’s attorney:
Attorney General of the State of New York
GWENDOLYN HATCHER, ESQ.Assistant Attorneys General
Third-party defendant’s attorney:

Signature date:
March 27, 2006

Official citation:

Appellate results:
REVERSED 43 AD3d 679 1st Dept 9/13/07
See also (multicaptioned case)


On January 20, 2006, the following papers were read on motion by Claimant for an order striking the Defendant’s answer and other relief that seems just and proper:

Notice of Motion, Affirmation (“Rapport Affirmation”) and Exhibits Annexed

Opposing Affirmation (“Stroth Affirmation”) and Exhibits Annexed

Claimant’s Reply Affirmation and Exhibit Annexed

Defendant’s Sur-Reply Affirmation

Claimant’s Final Reply Affirmation

Filed Papers: Claim; Answer

Upon the foregoing papers, this motion is denied to the extent noted and granted to the extent noted.

The instant claim seeks damages resulting from the fall of the Claimant, Gerald Quinn, from a chair located in the cafeteria at the City College of New York, a full-time college that is part of the City University of New York. As a result of the fall, Claimant is alleged to have suffered various injuries, including a herniated disc (Exhibit A to the Stroth affirmation, pp 2-3). Claimant seeks to strike the Defendant’s answer based upon the Defendant’s purported willful or negligent spoliation of evidence.

Procedural History

The incident herein occurred on September 13, 2000. The claim was filed on August 9, 2002, following the granting of the Claimant’s motion to file a late claim pursuant to Court of Claims Act §10(6).

On September 6, 2002, the State served its answer. Thereafter, on October 2, 2002, more than two years after the incident, the Claimant’s attorney served a notice for preservation of the offending chair (Exhibit A annexed to Claimant’s motion).

On October 9, 2002, City College of New York was contacted by the Office of the Attorney General and advised to preserve the chair. The chair had previously been preserved by City College. Photographs of the chair had been taken by City College and were submitted to Claimant’s attorney in response to his discovery demand on April 28, 2003.

A status conference was held on July 22, 2003, and pursuant to that conference the Claimant’s attorney was to have filed a note of issue by October 31, 2003. Court records reflect that the note of issue has yet to be filed, and obviously discovery has continued regardless.

Prior to that ostensible filing date, the chair had been inspected on August 21, 2003 by an expert for the chair manufacturer, James Gerner. The inspection lasted for over two hours and was also attended by Claimant’s attorney, who chose not to have an expert of his choosing make an inspection at that time -- nor did City College. The chair was inspected and disassembled, and 93 photographs were subsequently provided to Claimant’s attorney by the attorney for the chair manufacturer.

Finally, in July 2005, Claimant’s attorney requested an inspection of the chair. The Defendant, after making a search, advised Claimant’s attorney on or about August 8, 2005, that the chair could not be found, but they would advise him of their continued efforts. Within weeks, the present motion was made.


Claimant argues that the Defendant either willfully or negligently permitted the chair to be misplaced or discarded. As a result, Claimant seeks to strike the Defendant’s answer.

In making his argument, Claimant relies on a series of cases which correctly hold that where a critical item of evidence is destroyed, either intentionally or negligently, before the opposing party has had an opportunity to examine or inspect it, striking a pleading is an appropriate sanction (Rapport Affirmation, pp 2-5).

After reviewing all of these cases, I find they are distinguishable from the present case. In all of the cases cited by movant, the evidence was destroyed shortly after the incident or the commencement of an action, and prior to an inspection or examination. Here, on the day of the accident (September 13, 2000), the Claimant had the offending chair in his possession; he photographed it and had photographs taken by a professional photographer. He did not file a claim for almost two years after the incident. A notice of preservation was filed in October 2002, again two years after the incident. In August of 2003, almost three years after the incident, the defendant in a related Supreme Court action had its expert examine the chair. The latter expert disassembled the chair and took 93 photographs. Despite Claimant’s attorney being present at the inspection, he did not have his own expert examine it. It was not until July of 2005, almost five years after the incident, and some 21 months after the note of issue was to have been filed, that Claimant’s attorney sought to inspect the chair. By then it was too late because the chair could not be located.

While I cannot countenance the Defendant’s negligence in failing to protect critical evidence, neither can I condone the Claimant’s delay in failing to inspect or examine the evidence for approximately five years. Also, the failure of the City University to protect the chair from employees of the State Dormitory Authority, who were renovating in the area in which the chair had been stored, did not provide Defendant with any advantage over the Claimant, because it, like the Claimant, also failed to inspect the chair. They are, therefore, on the same footing.

Accordingly, after considering all of the facts of the case as well as the applicable law, that part of Claimant’s motion to strike the Defendant’s answer is denied. However, relief is granted to the extent that the Defendant is precluded from offering any evidence on the condition of the chair (Yi Min Ren v Professional Steam-Cleaning, 271 AD2d 602, 603; Gonzales v State of New York, Ct Cl., Claim No. 104506, Motion No. M-70119, Oct. 13, 2005, Mignano, J.).

March 27, 2006
Rochester, New York

Judge of the Court of Claims