New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2008-015-021, Claim No. 112476, Motion No. M-74409


Claimant's motion to strike the defendant's answer as a spoliation sanction for the destruction of evidence was denied where other evidence existed from which the claimant could potentially prove his claim.

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:
Law Offices of Gralicer & KaiserBy: Barry S. Kaiser, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 11, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for an order striking the defendant’s answer as a sanction for the destruction of key physical evidence pursuant to CPLR 3126 or, in the alternative, for a lesser sanction. Claimant allegedly slipped and fell at approximately 8:35 a.m. on February 15, 2006 near the entrance of the Overlook Lodge at Belleayre Mountain Ski Center (Ski Center) in Highmount, New York. Both the notice of intention served in April, 2006 and the claim served and filed in June, 2006 allege that the defendant was negligent in permitting drains, pipes, leaders and gutters to be and remain in a broken and deteriorated condition which caused water to accumulate and freeze on the deck outside the entrance to the Overlook Lodge and adjacent areas. The notice of intention and claim also allege that the defendant was negligent in allowing chains on the ground near the site of claimant's fall to become covered by accumulated ice and snow. Claimant allegedly suffered paraplegia with loss of function of the lower body as the result of the accident.

Employees of the Ski Center took photographs of the scene (claimant's Exhibit I) and completed an accident report (claimant's Exhibit K) on the date of claimant's alleged slip and fall.

The accident report indicates that the claimant slipped on ice as he was walking toward the ski lodge entrance and fell striking the base of his spine.

On February 16, 2006, one day after the accident occurred, Gerald Ingram and Mark Vogler, employees at Belleayre Mountain Ski Center, returned to the area at the direction of their Supervisor, Victor James Kittle, allegedly as part of an overall inspection of the facilities. Mr. Ingram testified at an examination before trial that he removed and disposed of the gutter over the entrance doors where the claimant fell (referred to as the “bar doors”) because it was damaged (claimant’s Exhibit F pp. 27, 54). Pictures taken the same day by Mr. and Mrs. Mosconi, friends of the claimant, depict the damaged gutter before it was removed (claimant’s Exhibit J). One of the photographs appears to show water dripping through the bottom of the gutter.

In addition to the pictures taken by the defendant’s employees on the date of the accident and those taken by the Mosconis one day following the accident, claimant’s expert took pictures of the area on August 10, 2006, albeit without the knowledge of the defendant (Exhibit L). These pictures depict the area where the gutters near the "bar doors" had previously been removed and the nearby area along the south side of the lodge.

On November 20, 2006 claimant served defense counsel with a notice to preserve the gutters, leaders and other parts of the drainage system for inspection by the claimant. In its response dated January 25, 2007 the defendant indicated that “the gutters and down-spouts previously existent on the fascia along the south edge of the Overlook Lodge roof were removed and discarded in June or July, 2006 and therefore are no longer available for inspection” (claimant’s Exhibit O). In a letter dated January 18, 2007, Mr. Kittle had advised defense counsel that the gutters and down-spouts on the south side of the lodge were removed and discarded in June or July, 2006, in preparation for a summer festival, because they were “damaged and unsightly” (claimant’s Exhibit O). However, during his examination before trial, Mr. Kittle was shown the photograph taken by claimant’s expert on August 10, 2006 and admitted that he may have been mistaken concerning the date the gutters and leaders on the south side of the lodge were removed (claimant’s Exhibit H, pp. 34-35). He also reiterated that the gutters were removed because they had cracks and gaps in the joints and were unsightly (Exhibit H, pp. 28-29).

Claimant argues in support of the motion that two acts of spoliation occurred in this case: the first upon the removal of the gutter over the bar doors one day after the accident, and the second upon the removal and destruction of the remaining gutters and down-spouts sometime in the summer or fall of 2006. According to the affidavit of Thomas R. Parisi, claimant’s expert, without the gutters he is unable to perform tests to determine whether they were properly installed and maintained and whether they were, in fact, damaged. However, Mr. Parisi goes on to state the following:
“From my investigation and inspection I have been able to render opinions that with a reasonable degree of engineering certainty the gutter/drainage system on the Overlook Lodge was defectively designed and constructed; was in a defective and dangerous condition on February 15, 2006; that the said defective and dangerous condition created an icy hazardous condition on the deck and adjacent area and was a proximate cause of the injury to [claimant].”
The fact that the claimant’s expert is able to render such an opinion based on the available evidence and his on-site inspection prior to the date the second segment of gutters was removed renders striking the defendant’s answer as a sanction for the alleged spoliation inappropriate. Striking a pleading as a sanction for spoliation is appropriate “[w]here a party destroys essential physical evidence 'such that its opponents are "prejudicially bereft of appropriate means to confront a claim with incisive evidence,". . .' " (Gerber v Rosenfeld, 18 AD3d 812 [2005] [citation omitted]). This is true whether the destruction of evidence was intentional or negligent 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, Inc., 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]). Striking of a pleading, however, would be inappropriate where a party is not entirely bereft of evidence tending to establish their position (Friel v Papa, 36 AD3d 754 (2007); McMahon v Ford Motor Co., 34 AD3d 263 [2006]; Cohen Bros. Realty v Rosenberg Elec. Contrs., 265 AD2d 242, 244 [1999], lv dismissed 95 NY2d 791 [2000]). Where the parties are equally prejudiced by the loss of the evidence, imposition of a sanction for spoliation may also be inappropriate (McLaughlin v Brouillet, 289 AD2d 461 [2001]). Here, claimant is admittedly not entirely bereft of evidence tending to establish his position. At least three sets of photographs exist which depict the gutters before they were removed. In addition, the claimant’s expert inspected the area before the second segment of gutters was removed. Finally, presumably the Mosconis can testify to the condition of the gutter over the "bar doors" which they photographed the day after claimant's accident. In these circumstances the drastic action of striking the defendant’s answer as a sanction for spoliation would be inappropriate. Additionally, at this juncture, no less drastic sanction appears warranted in light of the defendant’s admission, through Messrs. Ingram and Kittle, that the gutters were indeed damaged.

Accordingly, the claimant’s motion is denied.

March 11, 2008
Saratoga Springs, New York
Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 3, 2008;
  2. Affirmation of Barry S. Kaiser dated January 3, 2008 with exhibits;
  3. Affidavit of Thomas R. Parisi sworn to January 2, 2008 with exhibit;
  4. Affirmation of Saul Aronson dated February 13, 2008 with exhibits;
  5. Affidavit of Victor James Kittle sworn to February 9, 2008;
  6. Affirmation of Barry S. Kaiser dated February 19, 2008 with exhibits.