2019 WL 960395
Supreme Court, Appellate Division, Third Department, New York.
Cathy GITMAN, Respondent,
v.
Ruben MARTINEZ et al., Respondents,
and
Herbert Benner et al., Appellants.
526312
|
Calendar Date: January 7, 2019
|
Decided and Entered: February 28, 2019
Synopsis
Background: Driver brought personal injury action against owners and operators of two tractor trailers that were following driver’s car before it was struck in the rear. The Supreme Court, Melkonian, J., granted driver’s motion for partial summary judgment on issue of liability of second tractor trailer owner/operator. After their motion to renew was denied, owner and operator of second tractor trailer appealed. The Supreme Court, Appellate Division, Lahtinen, J., 139 A.D.3d 1175, affirmed as modified. After disclosure was completed, owner and operator of first tractor trailer moved for summary judgment, seeking dismissal of the complaint and second tractor trailer owner/operator’s cross claim, and driver cross-moved for partial summary judgment on issue of second tractor trailer owner/operator’s liability. Second tractor trailer owner/operator opposed both motions and cross-moved for an adverse inference charge based on the alleged spoliation of evidence by first tractor trailer owner/operator. The Supreme Court, Ulster County, Gilpatric, J., denied first tractor trailer owner/operator’s motion and driver’s cross motion and granted second tractor trailer owner/operator’s cross motion. First tractor trailer owner/operator appealed.

Holdings: The Supreme Court, Appellate Division, Third Department, Rumsey, J., held that:

[1] doctrine of law of the case, namely trial court’s prior finding that there was issue of fact regarding order of collision, did not preclude consideration of merits of first tractor trailer owner/operator’s summary judgment motion;

[2] rear-end collision between second tractor trailer and first tractor trailer established prima facie case of negligence against second tractor trailer owner/operator;

[3] whether there was a sudden and abrupt stop by first tractor trailer precluded grant of summary judgment to first tractor trailer owner/operator; and

[4] trial court did not abuse its discretion by finding that second tractor trailer owner/operator was entitled to adverse inference charge against first tractor trailer owner/operator for spoliation of evidence.

Affirmed.

West Headnotes (11)

[1]
Courts

Law of the case doctrine generally precludes relitigating an issue decided in an ongoing action when there previously was a full and fair opportunity to address the issue; however, court may revisit a prior ruling when there is subsequent evidence affecting the prior determination.
Cases that cite this headnote

[2]
Courts

In driver’s personal injury action against owners and operators of two tractor trailers, that were following driver’s car before it was struck in the rear, doctrine of law of the case, namely trial court’s prior finding that there was issue of fact regarding order of collision, did not preclude consideration of merits of first tractor trailer owner/operator’s summary judgment motion since first owner/operator made its summary judgment motion following completion of depositions and the additional discovery placed court in better position to determine legally dispositive issue; the prior determination was made upon a limited record.
Cases that cite this headnote

[3]
Courts

Law of the case binds only courts of coordinate jurisdiction and does not prohibit appellate review of a subordinate court’s order.
Cases that cite this headnote

[4]
Automobiles

Rear-end collision establishes a prima facie case of negligence, imposing a duty upon the operator of the trailing vehicle to provide a nonnegligent explanation for the collision.
Cases that cite this headnote

[5]
Automobiles

Sudden and abrupt stop of the vehicle in front can constitute a sufficient explanation to overcome the inference of negligence.
Cases that cite this headnote

[6]
Automobiles

Rear-end collision between second tractor trailer and first tractor trailer established a prima facie case of negligence against second tractor trailer owner/operator for purposes of personal injury action brought by driver against owners and operators of two tractor trailers that were following driver’s car before it was struck in the rear.
Cases that cite this headnote

[7]
Judgment

Material issue of fact as to whether there was a sudden and abrupt stop by first tractor trailer precluded grant of summary judgment to first tractor trailer owner/operator on personal injury claim brought by driver against owners and operators of two tractor trailers that were following driver’s car before it was struck in the rear.
Cases that cite this headnote

[8]
Evidence

Courts possess broad discretion to provide proportionate relief to a party deprived of lost or destroyed evidence, including employing an adverse inference instruction at the trial of the action.
Cases that cite this headnote

[9]
Evidence

Party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that evidence was destroyed with culpable state of mind, and that destroyed evidence was relevant to party’s claim or defense, such that the trier of fact could find that the evidence would support that claim or defense.
Cases that cite this headnote

[10]
Evidence

Spoliation of evidence sanctions may be imposed 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.
Cases that cite this headnote

[11]
Evidence

In driver’s personal injury action against owners and operators of two tractor trailers that were following driver’s car before it was struck in the rear, trial court did not abuse its discretion by finding that second tractor trailer owner/operator was entitled to adverse inference charge against first tractor trailer owner/operator for alleged destruction of electronic device or engine control module with which first tractor trailer was equipped; although any electronic data was destroyed before driver’s action was commenced or any demand had been made for preservation or production of such information, first tractor trailer owner/operator should have reasonably anticipated that a multi-vehicle accident resulting in personal injuries would likely result in litigation.
Cases that cite this headnote

Appeal from an order of the Supreme Court (Gilpatric, J.), entered January 29, 2018 in Ulster County, which, among other things, denied a motion by defendants Herbert Benner and Zook Trucking, LLC for summary judgment dismissing the complaint and cross claim against them.
Attorneys and Law Firms
Law Offices of Theresa J. Puleo, Syracuse (John F. Pfeifer of counsel), for appellants.
Daniel P. Buttafuoco & Associates, PLLC, Woodbury (Scott Szczesny of counsel), for Cathy Gitman, respondent.
Carter, Conboy, Case, Blackmore, Maloney & Laird, PC, Albany (Brian D. Carr of counsel), for Ruben Martinez and another, respondents.
Before: Egan Jr., J.P., Lynch, Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER
Rumsey, J.
*1 In September 2013, plaintiff sustained injuries in a multi-vehicle accident while traveling on Interstate 87 in Ulster County. Plaintiff’s car was ahead of two tractor trailers – she was followed first by the tractor trailer operated by defendant Herbert Benner and owned by defendant Zook Trucking, LLC (hereinafter collectively referred to as Zook) and then by the tractor trailer operated by defendant Ruben Martinez and owned by defendant Crete Carrier Corp. (hereinafter collectively referred to as Crete). The accident occurred as the three vehicles approached a construction zone where travel was restricted to one lane of the highway; plaintiff’s car was struck from behind by the Zook vehicle, which was struck from behind by the Crete vehicle. Plaintiff commenced this negligence action in November 2013 and cross claims were asserted between Zook and Crete.

In July 2014, while disclosure was ongoing and before any depositions had been conducted, plaintiff moved for partial summary judgment on the issue of liability. In December 2014, Supreme Court (Melkonian, J.) granted plaintiff’s motion as to Crete and, upon searching the record, sua sponte dismissed Crete’s cross claim and plaintiff’s complaint against Zook. In February 2016, Supreme Court granted Crete’s motion to renew and modified its December 2014 order by reversing the relief that it had granted sua sponte and reinstating Crete’s cross claim and plaintiff’s complaint against Zook. On appeal, we held that plaintiff’s motion for partial summary judgment on the issue of liability should have been denied as premature because disclosure, including depositions, had not been completed (139 A.D.3d 1175, 32 N.Y.S.3d 340 [2016] ). After disclosure was completed, Zook moved for summary judgment seeking dismissal of the complaint and Crete’s cross claim, and plaintiff cross-moved for partial summary judgment on the issue of Crete’s liability. Crete opposed both motions and cross-moved for an adverse inference charge based on the alleged spoliation of evidence by Zook. Supreme Court (Gilpatric, J.) denied Zook’s motion and plaintiff’s cross motion and granted Crete’s cross motion. Zook appeals.

[1] [2] [3]Initially, we agree that the doctrine of law of the case did not preclude consideration of the merits of Zook’s summary judgment motion. In its February 2016 order, Supreme Court (Melkonian, J.) found that plaintiff’s testimony that she felt two separate impacts was sufficient to raise a triable issue of fact regarding the order of the collision, i.e., whether the Zook vehicle was struck by the Crete vehicle before or after it struck plaintiff’s car. Supreme Court (Gilpatric, J.) denied Zook’s subsequent summary judgment motion on the basis that the prior finding that there was an issue of fact regarding the order of the collision constituted the law of the case precluding consideration of Zook’s summary judgment motion. “The law of the case doctrine generally precludes relitigating an issue decided in an ongoing action where there previously was a full and fair opportunity to address the issue” (Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 40 A.D.3d 1177, 1179, 834 N.Y.S.2d 736 [2007] [citations omitted] ). However, a court may revisit a prior ruling where there is subsequent evidence affecting the prior determination (see Matter of Hersh, 129 A.D.3d 840, 840, 11 N.Y.S.3d 630 [2015]; Lipp v. Port Auth. of N.Y. & N.J., 57 A.D.3d 953, 954, 871 N.Y.S.2d 307 [2008]; Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 40 A.D.3d at 1179, 834 N.Y.S.2d 736). Notably, when Crete’s renewal motion was granted in February 2016, depositions of Benner and Martinez had not been completed. As we previously noted, depositions of the parties were necessary to develop the relevant facts (see Gitman v. Martinez, 139 A.D.3d at 1176, 32 N.Y.S.3d 340). Zook made its summary judgment motion following completion of such depositions, and the “additional discovery place[d] the motion court in a far better position to determine a legally dispositive issue” (Foster v. Kelly, 119 A.D.3d 1250, 1251, 990 N.Y.S.2d 693 [2014] [internal quotation marks and citation omitted]; see Wenger v. Goodell, 288 A.D.2d 815, 816, 733 N.Y.S.2d 523 [2001], lv. denied 98 N.Y.2d 605, 746 N.Y.S.2d 279, 773 N.E.2d 1017 [2002] ). Thus, the prior determination that was made upon a limited record did not constitute law of the case.1

*2 [4] [5] [6]Turning to the merits, a rear-end collision establishes a prima facie case of negligence, imposing a duty upon the operator of the trailing vehicle to provide a nonnegligent explanation for the collision (see National Interstate v. A.J. Murphy Co., Inc., 9 A.D.3d 714, 715, 780 N.Y.S.2d 430 [2004] ). A “sudden and abrupt stop of the vehicle in front can constitute a sufficient explanation to overcome the inference of negligence” (Warner v. Kain, 162 A.D.3d 1384, 1384, 79 N.Y.S.3d 362 [2018] [internal quotation marks and citation omitted] ). The rear-end collision between the Crete vehicle and the Zook vehicle established a prima facie case of negligence against Crete, and Zook established its prima facie entitlement to summary judgment dismissing plaintiff’s complaint by submitting proof that the accident was caused by the Crete vehicle striking the Zook vehicle first and pushing it into the rear of plaintiff’s vehicle. Benner testified that he saw plaintiff’s vehicle slowing as it approached the construction zone and that he had slowed his vehicle to a speed of approximately 15–20 miles per hour when he was suddenly struck from behind. He testified that he heard a loud bang and that the force of the impact was so strong that his seat broke as his vehicle was pushed into the rear of plaintiff’s car. Benner further testified that, immediately following the accident, Martinez told him, “I’m sorry[,] I didn’t see you stopping or slowing down.” Zook also submitted the affidavit of John Scott, an expert in accident reconstruction, who opined that the accident occurred when the Crete vehicle collided with the Zook vehicle, causing it to be propelled into the rear of plaintiff’s vehicle twice.

[7]In opposition, Crete relied on the deposition testimony of Martinez and plaintiff, and also submitted the affidavit of Matthew Arbour, a professional engineer. Martinez testified that the Zook vehicle stopped suddenly before the collision. Plaintiff’s testimony that there were two separate impacts to her vehicle supports the inference that the Zook vehicle rear-ended plaintiff’s vehicle before it was rear-ended by the Crete vehicle. Arbour opined that the evidence was insufficient to support Scott’s opinion or to determine the number or sequence of impacts. When viewed in the light most favorable to the nonmovants, we conclude that Crete established the existence of a triable issue of fact as to whether there was a sudden and abrupt stop by the Zook vehicle (see Warner v. Kain, 162 A.D.3d at 1386, 79 N.Y.S.3d 362). Accordingly, Zook’s motion for summary judgment was properly denied.

[8] [9] [10]Zook further contends that Supreme Court erred in granting Crete’s cross motion seeking an adverse inference charge based on Zook’s spoliation of data from electronic recording devices in its vehicle. “[T]rial courts possess broad discretion to provide proportionate relief to a party deprived of lost or destroyed evidence, including … employing an adverse inference instruction at the trial of the action” (Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 N.Y.3d 543, 551, 26 N.Y.S.3d 218, 46 N.E.3d 601 [2015] ). “ A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” (id. at 547, 26 N.Y.S.3d 218, 46 N.E.3d 601 [internal quotation marks and citations omitted] ). As relevant here, spoliation sanctions may be imposed “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” (Simoneit v. Mark Cerrone, Inc., 122 A.D.3d 1246, 1247, 996 N.Y.S.2d 810 [2014] [internal quotation marks, brackets, ellipsis and citation omitted], amended 126 A.D.3d 1428, 6 N.Y.S.3d 918 [2015]; see Enstrom v. Garden Place Hotel, 27 A.D.3d 1084, 1086, 811 N.Y.S.2d 263 [2006]; Cummings v. Central Tractor Farm & Country, 281 A.D.2d 792, 793, 722 N.Y.S.2d 285 [2001], lv. dismissed 96 N.Y.2d 896, 730 N.Y.S.2d 792, 756 N.E.2d 80 [2001] ).

[11]In response to a June 2014 demand, Zook conceded that it was unable to produce any data from an electronic device or engine control module with which the Zook vehicle was equipped. In support of its cross motion seeking an adverse inference charge, Crete relied on Arbour’s opinion that Zook’s vehicle would likely have been equipped with an event data recorder (hereinafter EDR) capable of recording information regarding hard braking and last stop events, which may have provided information relevant to the determination of the number and sequence of collisions. Zook’s expert, Scott, acknowledged that the Zook vehicle was equipped with an EDR installed by the manufacturer; however, he concluded – based on Benner’s version of events – that it would not have provided any useful data. Scott further explained that “last stop” data is overwritten – and, therefore, is no longer available – when the vehicle is subsequently driven. After the accident on September 19, 2013, the Zook vehicle was towed from the scene to a nearby storage yard, where it remained until September 30, 2013, when Ivan Zook, a principal of Zook Trucking, LLC, removed the vehicle from storage and placed it back into service. Although any EDR data was destroyed before this action was commenced or any demand had been made for preservation or production of such information, Zook should have reasonably anticipated that a multi-vehicle accident resulting in personal injuries would likely result in litigation (see Simoneit v. Mark Cerrone, Inc., 122 A.D.3d at 1248, 996 N.Y.S.2d 810; Martinez v. Paddock Chevrolet, Inc., 85 A.D.3d 1691, 1692, 927 N.Y.S.2d 489 [2011] ). Accordingly, we find no abuse of discretion in Supreme Court’s determination that Crete is entitled to an adverse inference charge against Zook at trial (see Cioffi v. S.M. Foods, Inc., 142 A.D.3d 520, 526, 36 N.Y.S.3d 475 [2016] ).

*3 Egan Jr., J.P., Lynch, Aarons and Pritzker, JJ., concur.

ORDERED that the order is affirmed, with one bill of costs.

All Citations
— N.Y.S.3d —-, 2019 WL 960395, 2019 N.Y. Slip Op. 01464

Footnotes

1
We further note that law of the case binds only courts of coordinate jurisdiction and “does not prohibit appellate review of a subordinate court’s order” (Matter of Jonathan M., 61 A.D.3d 1374, 1375, 877 N.Y.S.2d 575 [2009] [internal quotation marks and citation omitted] ). Accordingly, we are not restricted by the law of the case doctrine here (see Frontier Ins. Co. v. Merritt & McKenzie, Inc., 159 A.D.3d 1156, 1158, 73 N.Y.S.3d 267 [2018] ).