New York Court Of Appeals Affirms Holding That There Is No Independent Tort Of Third-Party Negligent Spoliation Of Evidence
December, 2007
On October 16, 2007, New York’s highest court answered the long awaited question: whether New York recognizes the tort of third-party negligent spoliation of evidence. The unanimous decision of the Court, in its second sentence of the decision, stated: “We conclude that the tort is not cognizable in this state.” Ortega v. City of New York, 9 N.Y.3d 69 (2007).
In the CM Report, NY Edition, 2004, Volume 2, I wrote an article concerning the N.Y. Court of Appeals’ decision in MetLife Auto & Home v. Joe Basil Chevrolet, 1 N.Y.3d 478 (2004). In MetLife, the Court “found it unnecessary to determine whether the tort was viable because the plaintiff in that action had failed to establish a fundamental element-that the party who destroyed the evidence owed plaintiff a duty to preserve it.” Thus, I concluded my article with the following Learning Point:
If a potential adversary or someone on behalf of a potential adversary is going to preserve evidence that you have an interest in, you must send a letter to that potential adversary, or to the entity acting on behalf of the potential adversary, clearly and unambiguously advising them that: (1) the evidence will be used in an impending litigation; (2) they have a duty to preserve the evidence for your benefit; (3) you are willing to pay for any storage costs, on a pro rata basis; (4) failure to preserve the evidence will constitute a breach of their duty to preserve the evidence; and (5) failure to preserve the evidence will result in a claim being filed against them in a court of law relative to their spoliation of the evidence. Naturally, if you can acquire a written statement from the person preserving the evidence that they will continue to do so and acknowledge that they have a duty to do so, you have protected your interests to assert a third-party spoliation claim if the evidence is discarded. Alternatively, if a potential adversary or someone on behalf of a potential adversary is going to preserve evidence that you have an interest in, you can seek a pre-litigation court order requiring that party to preserve the evidence.
In Ortega, Plaintiff Ortega purchased a 1987 used minivan. She then had the van serviced and inspected. The next day, Plaintiff Ortega and Plaintiff Manuel Peralta were traveling in the van when they smelled fumes. They pulled the van over to the side of the road and it then burst into flames. Plaintiffs suffered severe personal injuries. The NYC Police investigated the loss scene and contacted Ridge Transport Systems to tow the van from the side of the road. Ridge towed the van to its facility. Plaintiff Peralta’s counsel attempted to inspect the van; however, he was refused access because Plaintiff Peralta was not the registered owner, did not have a bill of sale or title. Ridge advised counsel that the van will be destroyed if not claimed by its legal owner.
Plaintiff Peralta’s counsel immediately commenced a special proceeding against Ridge and the NYC Police Department, seeking to preserve the van and allow his access to the van. Pending the Court’s decisions, the van was towed to the NYC Police Department’s Auto Pound. The Court granted Plaintiff Peralta’s counsel’s requested relief. The Order permitted inspection of the van within 60 days, and precluded the van’s alteration or destruction until completion of the inspection. The Order was properly served upon Ridge and the Police Department. The Police Department’s Legal Counsel then sent a formal notice to the Pound “directing preservation of the vehicle pending Peralta’s inspection.”
Instead of following the Order, the Pound followed its usual procedure. Specifically, after receipt of the van, it sent a formal letter to the registered owner and if no response was received within 15 days, it auctioned the vehicle for scrap metal. The letter to Plaintiff Ortega was returned for insufficient address. Thus, the Pound auctioned the van, less than 30 days after the Court’s Order. The NYC Police Department’s Legal Counsel did not know of the Pound’s action. Once the NYC Police Department’s Legal Counsel learned of this turn of events, it notified Plaintiff Peralta and the Court.
Plaintiffs did not file a personal injury lawsuit against Ford Motor Company, the previous owner of the vehicle or the service station. Instead, Plaintiffs filed suit against the City of New York, asserting 2 causes of action: (1) the City should be liable for the fire as a result of its spoliation of evidence; and (2) the City violated a Court Order and thus was in contempt of court, and should be liable for all damages flowing from the spoliation.
Plaintiffs moved for summary judgment. The City opposed the motion and filed a cross-motion for summary judgment. The motion court denied Plaintiff Ortega’s motion for summary judgment, on the basis that Plaintiff Ortega was not a party to the Preservation Order. The court denied Plaintiff Peralta’s motion on the basis that a trial should take place to determine whether the City spoliated evidence and that caused Plaintiff’s damages. The court dismissed the cause of action for contempt, stating that Plaintiff should raise that claim with the court that issued the Preservation Order, not within a new legal proceeding. On appeal, the Appellate Division affirmed the lower court’s decision with respect to Plaintiff Ortega. However, the appellate court reversed the decision as to Plaintiff Peralta and held that the record did not support a claim of spoliation of evidence, and thereby granted the City’s motion dismissing the Complaint.
The Court of Appeals granted Plaintiffs’ leave to appeal. The Court spent about 5 of its 8 page decision reviewing spoliation of evidence case law and potential remedies. The Court recognized that Plaintiffs had an avenue of recourse against the City in a Contempt Proceeding, thus “the wrong” was capable of being addressed. Further, the Court recognized that there are adequate sanctions available to parties involved in a litigation when spoliation occurs, although this was not applicable to the present Plaintiffs. At the end of its decision, the Court stated: “For all these reasons, we join the majority of jurisdictions to consider the issue (see Fletcher, 437 Mass at 547, 773 N.E.2d at 424) and decline to recognize spoliation of evidence as an independent tort claim.”
Learning Point:
As a result of the Ortega holding, under New York law, a party concerned about the preservation of evidence, which evidence is in the hands of a potential third-party and there is no pending litigation, should acquire a Court Order directing that third-party to preserve the evidence. Further, I once again reiterate the Learning Point I set forth in my article concerning MetLife.
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