New York State Court of Claims

New York State Court of Claims

DISPENZA v. THE STATE OF NEW YORK, #2006-013-029, Claim No. 106350, Motion Nos. M-70076, M-70077, CM-70448


Dismissal due to alleged spoliation of evidence is denied, where there is significant photographic evidence and where the repair to the motorcycle took place long before any demand for inspection. Summary judgment is denied because there exists substantive questions of disputed facts.

Case Information

1 1.The Court has sua sponte amended the caption to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-70076, M-70077
Cross-motion number(s):
Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:
Signature date:
June 29, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on motion by Defendant for spoliation of evidence and to dismiss the claim; on motion by Defendant for summary judgment; and on cross-motion by Claimants for summary judgment:

Notice of Motion M-70076 (spoliation, strike claim and dismiss), affirmation, Bartlett and Galarza affidavits and exhibits annexed, memorandum of law

Notice of Motion M-70077 (summary judgment); affirmation; Williams, Smith and McKeon affidavits; exhibits annexed and memorandum of law

Notice of Cross-Motion CM-70448 (summary judgment) with affidavits attached (Letro, Schneider, Draper, Smith, Barkan, Serth, Ezra, Nick Dispenza, Hartrich, Lindke and Londos; exhibits and memorandum of law

Canale affidavit in support of CM-70448 (filed August 1, 2005)

Gelormini reply affirmation on M-70076; reply affidavits of Galarza, Wade, Bartlett; Gelormini reply affirmation on M-70077; Bellinger affidavit; McKeon reply affidavit; additional affidavit of Schneider; reply memorandum of law

Further affidavit of Letro (all three motions)

Defendant’s second reply memorandum of law; McKeon second reply affidavit

Upon the foregoing papers, the motions and cross-motion are all denied.

Claimants’ motorcycle allegedly slipped on wet paint on or about April 16, 2002. In Motion No. M-70076 the Defendant seeks to strike and dismiss the claim on the basis that Claimants have improperly disposed of the motorcycle and tires involved in the accident. For this alleged spoliation, Defendant urges that CPLR 3124 is the only viable remedy because its experts would be unable to inspect or analyze the motorcycle or tires, and this would fatefully prejudice the State in its ability to defend this claim. The requested relief is supported by the affidavits of experts.

Since the Claimant Nick Dispenza testified at his deposition (Defendant’s Exhibit 1, dated November 23, 2004) that the rear tire of the motorcycle slipped on an allegedly wet edge line and that rear portions of the motorcycle were covered with white paint, it can be surmised that the tangible proof of such assertions, to wit, the motorcycle and tires, might be probative. Defendant posits a duty on the part of the Claimants to preserve the motorcycle and tires intact, even before the commencement of this action, particularly in light of the fact that Claimant Nick Dispenza went to the scene of the accident on the day after its happening to take photographs of the accident site, strongly demonstrating the contemplation of potential litigation. Allegedly no such contempor-aneous photographs of the motorcycle or tires were taken by Nick Dispenza.

The claim herein was served on July 10, 2002, and on September 16, 2002, Defendant served Claimants with a demand to, inter alia, preserve the motorcycle (Exhibit 2, p. 9) to allow inspection, testing, etc. By letter dated November 22, 2002, Defendant demanded that December 20, 2002 be fixed as the date for disclosure of the motorcycle. On December 18, 2002 Claimants’ counsel advised that the motorcycle “has been repaired and sold by Mr. Dispenza” and that Claimants no longer owned or had custody of it.

However, documentary and affidavit submissions establish that Nick Dispenza delivered his old motorcycle on September 13, 2002 as a trade-in to finalize the purchase of his new motorcycle, a sale that was consummated on September 20, 2002. It appears that Claimant Nick Dispenza had signed a contract previous to the accident to purchase a new motorcycle and that he would trade in the motorcycle that he had owned and which he was driving at the time of this accident. It also appears that on March 6, 2002, some five or six weeks prior to the accident, there was an inspection and servicing of the motorcycle, including the replacement of the rear tire. It further appears that on April 18, 2002, just two days after the accident in question, Claimant Nick Dispenza brought the motorcycle in question to the same repair and service shop that he used for the March 6, 2002 servicing and with which he had contracted for the trade-in and impending purchase. After inspection and the approval of Claimants’ insurer, State Farm, repairs were effectuated shortly thereafter, apparently in May and June and perhaps July of 2002 (see Exhibits 2 and 3 to the Hartrich affidavit appended as Exhibit J to the cross-motion). Thus, it would appear that the items forming the basis of the spoliation motion, the left and right engine guards and the rear fender, were replaced and the tires cleansed of paint with lacquer thinner (affirmed in the affidavit of Lindke, appended as Exhibit K to the cross-motion), and that such repairs were completed prior to or essentially contemporaneously with the filing of the claim herein.

I also observe that it is undisputed that almost immediately after the accident Claimant Nick Dispenza drove the motorcycle a total of approximately 100 miles from the scene of the accident to Strong Memorial Hospital in Rochester, where his wife, Claimant Beth Dispenza, was taken for medical treatment as a result of the accident, and then back to his place of residence.

Claimants’ counsel obviously, and perhaps intentionally, delayed notification of the Defendant of the status of the motorcycle, waiting until two days prior to the scheduled inspection, and some three months after he received the first demand therefor. It also appears that the motorcycle in question was not sold until April 17, 2003, and that, based upon the three mile odometer differential between the time of delivery for trade-in and the date of sale, it remained with the motorcycle dealer for many months. It has not escaped my observation that the Claimants’ counsel did not volunteer the location of the motorcycle if he knew it, nor did counsel attempt to obtain such information in the interest of full disclosure. On the other hand, it also does not appear that the Defendant made further inquiry after having been advised on December 18, 2002 that it had been repaired and sold. The cat-and-mouse aspects of this issue are particularly distasteful.

Speaking of which, I digress here for a moment to reference another annoyingly contentious issue, raised with respect to the subpoena by Claimants’ counsel of certain files and photographs from Claimants’ insurer, State Farm Insurance Company. There was discussion regarding the lack of service of a copy of said subpoena upon the State, or proper filing thereof with the Clerk of this Court, and the provision by John F. Canale, Esq., who represents Claimant Nick Dispenza in defense of the counterclaim herein interposed by the State of New York, of the subpoena and the materials provided thereunder to the State (Exhibit A to the State’s reply affirmation in M-70076) . I am troubled that Claimants’ counsel issued a “Judicial Subpoena Duces Tecum” (Exhibit B to the State’s reply affirmation in M-70076), purportedly witnessed by me, but which I had never seen. It is also intriguing to note that the subpoena actually directed that the files be delivered to the Court of Claims in Buffalo (Query: why not Rochester where this claim is venued?). Regardless, the files were never delivered to the Court, but were delivered instead to Claimants’ counsel, albeit with a copy delivered to the State.

Back to spoliation.

Spoliation sanctions may be appropriate “even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided [the party] was on notice that the evidence might be needed for future litigation” (DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, 53 [1998]; see Iannucci v Rose, 8 AD3d 437, 438 [2004]; [other citations omitted]). Striking a pleading for negligent spoliation is a drastic sanction that is appropriate only where the missing evidence “deprive[s] the moving party of the ability to establish his or her defense or case [citations omitted]” (Enstrom v Garden Place Hotel, 27 AD3d 1084, 1086).

Nonetheless, despite what I perceive to be a level of disingenuousness by Claimants, the circumstances here do not warrant an order striking the claim and dismissal of the action based upon the purported spoliation. I similarly deny Defendant’s request pursuant to CPLR 2218 for a plenary trial on this singular issue. The Defendant’s arguments seem to me to overlook the fact that the motorcycle was repaired prior to any demand for its inspection, and I decline to infer any surreptitious motive to the initial photographs taken by Claimant Nick Dispenza and the supposed intentional omission of photographs of the tires. Claimants’ burden of proof is not lessened and I find no advantage to Claimants or disadvantage to Defendant in the absence of the unavailable items specified above, as both sides appear to be on equal footing since the motorcycle does not exist in a preserved state. Defendant’s Motion M-70076 for dismissal based upon the purported spoliation is denied at this time. Should the proof at trial demonstrate to my satisfaction that the missing evidence has proximately deprived the State of its ability to establish its defense, I would entertain renewal of a motion seeking appropriate relief.

Next the Defendant seeks summary judgment (Motion No. M-70077) on its behalf, while the Claimants have made a cross-motion (CM-70448) for summary judgment on their behalf. Inasmuch as summary judgment is denied in all respects, it is not necessary for me to review the purported deficiency in the Defendant’s motion for the failure to have included all the pleadings, or the purported untimeliness of the Claimants’ cross-motion for summary judgment beyond the deadlines set forth in my scheduling order. Adding to the numerous contradictions before me are the previous (now withdrawn) and current affidavits of Claimant Nick Dispenza’s counsel on the counterclaim.

There are substantive questions of disputed facts and diametrically opposed and controverted affidavits that frankly require a trial with live testimony for me to discern credibility, including whether one state employee observed Claimants on their motorcycle parked behind a Department of Transportation (DOT) truck or not; whether DOT employee Bellinger attended to an injured Claimant Beth Dispenza or not; whether the motorcycle did or did not hit something in the roadway and whether that something was wet paint; whether the paint was wet or in the drying process, etc. I have reviewed the initial and subsequent affidavits (submitted by both parties) of William Schneider, who was a witness to the accident and who, at the time of the accident, was the Chief of Police for the Caledonia Police Department with experience in investigating and reporting on motor vehicle accidents as well as the use and operation of motorcycles (Exhibit B to the cross-motion). While he initially observed no DOT vehicles at the intersection of Routes 5 and 20 in the vicinity, he then observed a parked truck in the parking lot of a restaurant some 120 feet from the downed motorcycle. Schneider’s initial affidavit disputes certain factual assertions in the deposition of DOT employee Wiand (Exhibit 1 to Motion No. M-70077). Given that Wiand had testified that Nick Dispenza was parked behind his DOT truck for five minutes or so at the intersection, the fact that Schneider contradicts other Wiand assertions undermines the credibility that I might otherwise apply to Wiand’s deposition. Similarly, given the dichotomous assertions about attending to Beth Dispenza, the entirety of DOT employee Bellinger’s deposition testimony (Exhibit 4 to Motion No. M-70077), is similarly placed in question. Of course, Schneider’s credibility, inasmuch as his affidavits by themselves create material issues of fact, is similarly in question and must be assessed.

The proponent of summary judgment must make a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Center, 64 NY2d 851). If there is any question as to the existence of a material issue of fact, summary judgment should not be granted (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). The outstanding questions of fact implicate Defendant’s allegations that the recklessness standard of Vehicle and Traffic Law §1103(b) applies, that there was full compliance with relevant provisions of the New York State Department of Transportation Manual of Uniform Traffic Control Devices and that the principles of Weiss v Fote (7 NY2d 579) apply, and Claimants’ allegations, inter alia, that DOT knew that the paint wasn’t drying properly and that is why they changed normal operations, and had the trucks wait an extra, but insufficient period of time, and thus created and permitted a dangerous and hazardous condition.

Given these testimonial contraventions, and I find it unnecessary to recite each and every issue of material fact in question, it is abundantly clear that I must adjudge the credibility of various deponents and affiants at trial. Accordingly, summary judgment is denied to both parties.

In sum, therefore, the motions and cross-motion are all denied.

June 29, 2006
Rochester, New York

Judge of the Court of Claims