New York State Court of Claims

New York State Court of Claims

SCHIFF v. THE STATE OF NEW YORK, #2006-033-223, Claim No. 107777, Motion No. M-72027


Synopsis



Case Information

UID:
2006-033-223
Claimant(s):
DAVID SCHIFF and IRIS SCHIFF
Claimant short name:
SCHIFF
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107777
Motion number(s):
M-72027
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Greshin, Ziegler & Amicizia, LLPBy: Joel J. Ziegler, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John L. Belford, IV, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 29, 2006
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim brought by David Schiff (hereinafter "claimant") due to the alleged negligence of the defendant, the State of New York (hereinafter “State”). The alleged negligence occurred on July 20, 2002, at the Edwards Avenue canoe launch in Riverhead, New York. The claim of Iris Schiff is derivative in nature. Claimants move this Court to strike the answer of defendant for spoliation of evidence[1].

This Court recounted the facts of this matter in a previous motion for summary judgment (M-68136). In its decision, the Court found partial summary judgment in favor of claimants. Among other things, the Court found defendant had a duty to inspect the area where it had constructed the canoe portage, the site of claimant’s accident. This was based on defendant’s removal of a fence and reconstruction of this area to allow steps into the water and a slide for the canoe. This Court imposed a duty to inspect the riverbed upon the Court taking judicial notice of the fact that canoeists on Long Island must wade into the water to launch and get into their canoes.

The Appellate Division, Second Department, unanimously reversed this Court’s decision (31 AD3d 526). The Appellate Division refused to impose a duty upon defendant to conduct an underwater inspection at a non-dock canoe launching site it had constructed. One presumes that my learned brethren in Brooklyn have learned how to launch a canoe without getting wet. Without imposing this duty on defendant, a factual issue remained as to whether or not defendant had actual or constructive notice of the subject condition.

Claimants’ instant motion is based upon defendant’s removal, disposal and destruction of the hazard claimant stepped on.

In 2003, Charles Guthrie (hereinafter “Guthrie”) was employed by defendant as the regional fisheries manager. Guthrie was deposed and the transcript is attached as claimants’ Exhibit F. His duties included inspecting areas of public access to waterways for the purpose of fishing. The canoe portage site in question is such an access point for fishing. As such, Guthrie would inspect the area at least once a year with the maintenance staff and once a week during the season from April through September. After learning of the instant accident in January 2003, Guthrie visited the site in the winter of 2003. Finding the area frozen, he left and returned for an underwater inspection in May 2003. Using a pair of waders, Guthrie waded into the water and found an obstruction in approximately three feet of water. The obstruction was described as metal sticking up approximately 18 inches to 2 feet from the bottom. Guthrie could not determine what it was embedded in, but he was unable to move it by hand. According to the witness, the location the obstruction was in posed a hazard to canoeists. Guthrie issued a work request (claimants’ Exhibit H) to have the obstruction removed. On May 9, 2003, with the use of a winch, the metal rod and concrete it was embedded in were removed from the riverbed. Upon returning to the Department of Environmental Conservation facility in Ridge, New York, the crew threw the object into a dumpster which was later emptied.

Claimants served a notice of intention upon defendant on August 20, 2002. The claim was served on defendant on December 31, 2002 and defendant submitted its amended verified answer on January 24, 2003. Guthrie learned of the incident in January 2003.

Defendant opposes any sanction due to spoliation of evidence saying that: the object is not necessary to the prosecution of this matter; it was a mistake by an “unwitting employee”; and, no attempt was made to conceal the disposal and destruction of the object.

The Court has broad discretion when considering the appropriate sanction for spoliation of evidence. The prejudice that results from the spoliation of evidence must be considered (De Los Santos v Polanco, 21 AD3d 397).
Defendant’s opposition is almost without merit. While defendant’s employee who did the work to remove the object may have been “unwitting”, counsel and Guthrie do not fall into that category. Counsel’s office and Guthrie were aware of the pending litigation. They had a duty to preserve and protect the object upon its removal from the accident site. Depending on how the fence at the site had been installed, the spoliation of the evidence may be severely prejudicial to claimant. The Court will hold a hearing to consider the appropriate sanction in this matter against defendant. The Court will be interested in any testimony as to the type of fence that had been installed by the private property owner.

Based upon the foregoing, the Court finds defendant is guilty in the spoliation of evidence. However, the Court will reserve judgment as to the appropriate sanction until a hearing, as detailed above, is held. The parties are directed to contact the Court upon receipt of this decision and order to schedule said hearing.


December 29, 2006
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on claimants’ motion: Notice of Motion dated July 19, 2006 and filed July 24, 2006; Affirmation in Support of Joel J. Ziegler, Esq. with annexed Exhibits A-J dated July 19, 2006 and filed July 24, 2006; Memorandum of Law in Support of Claimants’ Motion for Summary Judgment received July 24, 2006; Affirmation in Opposition of John L. Belford, IV, Esq. dated October 6, 2006 and filed October 10, 2006; Reply Affirmation of Joel J. Ziegler, Esq. dated October 16, 2006 and filed October 24, 2006.