New York State Court of Claims

New York State Court of Claims

HAY v. THE STATE OF NEW YORK, #2007-015-185, Claim No. 110794, Motion Nos. M-72933, CM-73001


Defendant's motion to dismiss claim for spoilation of evidence was denied. Destruction of motor vehicle in which claimant was injured was not procured by the injured claimant, who did not own the vehicle. In addition, alternative means of supporting defendant's seatbelt defense were available.

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:
Conway and Kirby, LLPBy: Thomas A. Conway, Esquire and Kimberly Boucher Furnish, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Frederick H. McGown, III, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 15, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for dismissal of this claim on the basis of spoliation of physical evidence. Claimant cross-moves for summary judgment or, in the alternative, to preclude the defendant from offering evidence to support its affirmative defenses as the result of its failure to provide a bill of particulars.

Claimant, Judith Hay, was allegedly injured in an automobile accident on June 17, 2003 on State Route 82 in Ancram, New York as the result of the negligent design and construction of the roadway. At the time of the accident, the claimant was the operator of a 1991 Ford sedan owned by her husband, Gene A. Hay, Sr.

Claimant alleges that she was proceeding northbound on State Route 82 when a deer entered the roadway from a westerly direction. In an attempt to avoid the deer the claimant swerved her vehicle in an easterly direction and struck a tree stump on the side of the road, sustaining serious personal injuries. She was airlifted to Albany Medical Center where she remained until her discharge on August 1, 2003. Thereafter she was admitted to a nursing home for treatment and therapy from which she was discharged on October 23, 2003.

A notice of intention to file a claim was received by the defendant on September 15, 2003 and the claim was filed on April 25, 2005. The defendant's answer served on June 1, 2005 alleges as an affirmative defense that the claimant's vehicle was equipped with seat belts, the use of which would have mitigated her damages. On November 1, 2006 the defendant served claimant with a notice to produce and preserve for inspection the 1991 automobile involved in the accident. On December 19, 2006 the claimant responded to this notice indicating that the vehicle had been "crushed at a local junkyard" and provided copies of 19 color photographs of the vehicle.

Defendant's motion for spoliation sanctions is based on the contention that the claimant's failure to preserve the automobile for inspection warrants dismissal of the claim. In support of its motion the defendant proffered affidavits from its expert and investigator. The defendant's expert, George L. Ruotolo, states in an affidavit that the damage to the vehicle as depicted in the photographs is consistent with the removal of the claimant from the passenger side of the vehicle, which lends support for the contention that the claimant was not wearing her seat belt. The expert states that without the opportunity to inspect the vehicle, however, "the State is precluded from reaching valid conclusions about the use of the seat belt and the ability of the seat belt system to minimize serious injuries during the impact" (see defendant's Exhibit G, ¶ 13 ). Mr. Ruotolo states that an examination of the vehicle is necessary to determine whether or not a seat belt system was present and operational and whether it was being utilized by the claimant on the date of the incident. According to this expert, an examination of the hardware would normally be performed to determine if any evidence exists to support either the use or non-use of the seat belt during the collision. Also submitted in support of the defendant's motion is the affidavit of Edwin I. Seastrum, an investigator who contacted Pine Plains Autobody and was informed that the vehicle was taken to John Hughes Used Auto Parts. Mr. Seastrum then contacted John Hughes Used Auto Parts and spoke with a woman who identified herself as the owner's wife. The woman purportedly advised Mr. Seastrum that "[t]he family specifically asked him to get rid of [the vehicle], to have it destroyed". Mr. Seastrum then contacted John Hughes, the owner, who would confirm only that the vehicle was brought to his place of business and destroyed in the fall of 2003. He refused to confirm which family member authorized the destruction of the vehicle.

In opposition to the defendant's motion, the claimant points out that she did not own the vehicle involved in the accident, which was owned by her husband, and that she had no control over the vehicle nor was she responsible for its destruction. In addition, the claimant argues that the defendant is not bereft of means to support its seat belt defense and that both parties are equally disadvantaged in this regard by the destruction of the vehicle. Lastly, the claimant points out that the demand to inspect and preserve the vehicle was made more than three years after the notice of intention to file the claim was received by the defendant, almost one year and seven months after the claim was filed, and three months after the deposition of the claimant. Claimant argues therefore that the defendant's belated demand demonstrates both a lack of need and that the claimant's conduct was neither willful nor negligent.

Claimant also submitted in opposition to the defendant's motion affidavits from herself, her husband and her two sons. Claimant avers in her affidavit that she did not own the vehicle and that she never directed that it be destroyed. She states that she sustained multiple fractures which required surgery and months of convalescent care. She states that on the date of the accident she was wearing her seat belt, as was her customary practice, and that it is her belief that the only reason she is alive is because she was protected by the seat belt and air bag.

Gene Hay, the claimant's husband, submitted an affidavit in which he avers that the claimant dropped him off at work on the date of the accident and that shortly after his arrival at work, he was contacted and advised that his wife had been in a very serious accident. He went to the accident scene where he found his wife in the driver's seat of the vehicle. He states that the driver's door was "jammed shut". He states that his son Brian climbed into the back seat through the left rear door and that in order to facilitate access to his wife by the paramedic, he bent the frame on the passenger side so that the paramedic could climb through the passenger side front window. He states that he observed the paramedics and his son carefully remove the seat belt from his wife's body. Mr. Hay states that after the accident he never saw his car again. The car was "totaled", not insured for physical damage and the least of his concerns. Mr. Hay states that he became aware months after the accident that the car had been destroyed but that he never directed its destruction nor did he transfer title to the vehicle.

The affidavit of Barry Hay, claimant's son, indicates that he received a phone call concerning his mother's accident shortly after it occurred and picked up his father at work and drove to the scene. He confirms that his mother was wearing her seat belt when they arrived. He also states that he was not asked what to do with the vehicle and did not authorize anyone to destroy it.

An affidavit from Brian Hay indicates that he was the second person to arrive at the accident scene. Upon his arrival, his mother was seated in the driver's seat wearing her seat belt and the air bag had deployed. He states that his father and brother arrived at the scene about five minutes later, shortly before the arrival of the paramedics. Brian Hay confirms that a paramedic climbed through the passenger side of the car after his father bent the door frame to enable him to climb in. He states that they were finally able to place his mother on a back board and remove her from the vehicle through the driver's door. Brian Hay states that no one asked him for permission to destroy the vehicle nor did he authorize its destruction.

In addition to the fact that the claimant did not own the vehicle nor authorize its destruction, claimant's counsel states that examination of the vehicle and the seat belt hardware is not the only means of supporting the defense that the claimant was not wearing her seat belt. In this regard excerpts from a book authored by the defendant's expert are quoted as follows:
There are numerous other methods to determine if a safety belt was used. Some of the less scientific methods involve examining the torso of the operator and/or passenger. If the collision is a serious frontal impact, for example, you look for bruises or abrasions on the body caused by the body's force against the belt.

Copies of the pertinent pages of Mr. Ruotolo's book are annexed as claimant's Exhibit G.

Defendant argues in reply that although the claimant did not own the vehicle, her husband did and it must be surmised under the circumstances that he was intentionally not named as a claimant to avoid the consequences of his spoliation. Defense counsel also notes the fact that no affidavit was submitted from either of the two Hay brothers who were at the Auto Body shop and took the photographs of the vehicle.

Lastly, defendant opposes the claimant's cross-motion for summary judgment or for preclusion based on the fact that its failure to provide a bill of particulars on its affirmative defenses was an oversight, that the claimant never made a good faith attempt to obtain a bill of particulars nor did claimant's counsel ever mention this fact in any of the conferences with the Court.

The Motion For Spoliation Sanctions

"Where a party destroys essential physical evidence 'such that its opponents are "prejudicially bereft of appropriate means to confront a claim with incisive evidence," the spoliator may be sanctioned by the striking of its pleading' " (Gerber v Rosenfeld, 18 AD3d 812, 812 [2005] [citations omitted]). Sanctions are not reserved for the intentional destruction of evidence since a party's negligent loss can be just as fatal to the other party's ability to present a case (Cummings v Central Tractor Farm & Country, 281 AD2d 792, 793 [2001], lv dismissed 96 NY2d 896 [2001]). Where the spoliator is on notice that the evidence might be needed for future litigation, spoliation sanctions may be warranted to prevent undue prejudice to an innocent party (Baglio v St. John's Queens Hosp., 303 AD2d 341, 342 [2003]). In determining the appropriate sanction, "courts will look to the extent that the spoliation of evidence may prejudice a party and whether a dismissal will be necessary as 'a matter of elementary fairness ' " (Puccia v Farley, 261 AD2d 83, 85 [1999], quoting Kirkland v New York City Hous. Auth., 236 AD2d 170, 175 [1997]; see also Miller v Weyerhaeuser Co., 3 AD3d 627 [2004], lv dismissed 3 NY3d 701 [2004]). Thus, where the evidence lost is " 'the very instrumentality giving rise to plaintiff's injuries' " dismissal may be warranted (Cutroneo v Dryer, 12 AD3d 811, 813 [2004], quoting Cummings v Central Tractor Farm & Country, 281 AD2d 792, 793 [2001], lv dismissed 96 NY2d 896 [2001]). Likewise, evidence crucial to a "core issue" of a defense may warrant dismissal (Randolph v Warnecke, 1 AD3d 731, 732 [2003]). However, striking of a pleading is a drastic remedy and is typically imposed only where the offending party knew or had reason to know that the missing evidence would be the subject of future litigation (Bigelow v Dick's Sporting Goods, 1 AD3d 777, 777-778 [2003]; O'Brien v Clark Equip. Co., 25 AD3d 958 [2006]; Barber v Kennedy Gen. Contrs., 302 AD2d 718 [2003] ). Where the parties are equally prejudiced by the loss of the evidence, imposition of a sanction for spoliation may be inappropriate (McLaughlin v Brouillet, 289 AD2d 461 [2001]). Importantly, it has been held that " 'dismissal would be too drastic a remedy where defendants are not entirely bereft of evidence tending to establish their position' " (McMahon v Ford Motor Co., 34 AD3d 263, 263 [2006], quoting Cohen Bros. Realty v Rosenberg Elec. Contrs., 265 AD2d 242, 244 [1999], lv dismissed 95 NY2d 791 [2000]).

Here, the claimant was not the owner of the vehicle and did not authorize its destruction. Given the nature of the claimant's injuries following the accident, it cannot be said that the vehicle was willfully destroyed with the aim of depriving the defendant of critical evidence necessary to defend the claim. While the negligent destruction of key evidence may warrant a spoliation sanction, here the parties are equally disadvantaged by the loss and the defendant is not entirely bereft of alternative means to establish that the claimant was not wearing her seat belt when the accident occurred. Significantly, the defendant's own expert, Mr. Ruotolo, has authored a book in which he states that "[t]here are numerous other methods to determine if a safety belt was in use" (see claimant's Exhibit G). Claimant's medical records may provide evidence of seat belt usage and statements from the rescue personnel involved in extricating the claimant, although not submitted on the instant motion, may also provide relevant information regarding this issue. Under these circumstances the Court finds the sanction of dismissal too drastic a remedy for the destruction of the vehicle involved in this accident (see McMahon v Ford Motor Co., 34 AD3d 263, 263 [2006]; McLaughlin v Brouillet, 289 AD2d 461 [2001] ). Accordingly, the defendant's motion for summary judgment dismissing this claim is denied.

Claimant's Cross Motion For Summary Judgment Or Preclusion

Despite the fact that the note of issue and certificate of readiness for trial has been filed and a trial date has been set, claimant now moves for summary judgment or preclusion with regard to matters for which a bill of particulars was demanded but not provided. The rules of this Court require that no motion relating to disclosure may be calendared without first conferring with the assigned judge (22 NYCRR 206.8 [b]). As the defendant correctly points out, this was not done. In addition, by filing the note of issue and certificate of readiness the claimant waived further discovery (Think Pink, Inc. v Rim, Inc., 19 AD3d 331 [2005]) and, in any event, the defendant has now served its bill of particulars together with its motion.

For all of the foregoing reasons the defendant's motion is denied and the claimant's cross-motion is denied.

May 15, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated February 9, 2007;
  2. Affirmation of Frederick H. McGown III, dated February 9, 2007 with exhibits;
  3. Memorandum of Law of Frederick H. McGown, III dated February 9, 2007;
  4. Notice of cross-motion dated February 27, 2007;
  5. Affirmation of Thomas A. Conway dated February 27, 2007 with exhibits;
  6. Affidavit of Judith Hay sworn to February 26, 2007;
  7. Affidavit of Gene A. Hay, Sr. sworn to February 26, 2007;
  8. Affidavit of Barry Hay sworn to February 13, 2007;
  9. Affidavit of Brian Hay sworn to February 26, 2007;
  10. Memorandum of Law of Thomas A. Conway and Kimberly Boucher Furnish dated February 27, 2007;
  11. Reply affirmation of Frederick H. McGown, III dated March 5, 2007.