Preview
FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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IAN MACDONALD, JAMES ROBERTS and
AFFIRMATION
BETH ANN CASSIDY-ROBERTS,
IN SUPPORT
Plaintiffs,
Index #: 155973/2017
-against-
TURNER CONSTRUCTION COMPANY and THE
NEW YORK AND PRESBYTERIAN HOSPITAL a/k/a
THE SOCIETY OF THE NEW YORK HOSPITAL,
Defendants.
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TURNER CONSTRUCTION COMPANY and THE
NEW YORK AND PRESBYTERIAN HOSPITAL,
Third-Party Plaintiffs,
-against-
PORT MORRIS TILE & MARBLE CORP.,
Third-Party Defendant.
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PORT MORRIS TILE & MARBLE CORP.,
Second Third-Party Plaintiff
-against-
TEXRON COMMERCIAL AUTO BODY-WORKS, INC.,
Second Third-Party Defendant.
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CURTIS B. GILFILLAN, ESQ., an attorney duly admitted to practice law in the Courts
of the State of New York, hereby affirms the following to be true under the penalties of perjury
and pursuant to CPLR §2106:
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1. I am an attorney with the LAW OFFICES OF TOBIAS & KUHN, attorneys for
the Second Third-Party Defendant, TEXRON COMMERCIAL AUTO BODY-WORKS, INC.
(hereinafter referred to as “TEXRON”). I am fully familiar with the facts and circumstances set
forth herein, with the source of my knowledge being the file maintained by my office.
2. I submit this affirmation in support of the instant motion seeking an Order,
pursuant to CPLR §3212, granting summary judgment and dismissing the second third-party
complaint of the Second Third-Party Plaintiff, PORT MORRIS TILE & MARBLE CORP.
(hereinafter referred to as PORT MORRIS), and any and all existing cross-claims against Second
Third-Party Defendant, TEXRON, or, alternatively, dismissing Second Third-Party Plaintiff,
PORT MORRIS’ complaint due to the wilfull and intentional spoliation of key evidence, or,
alternatively for a spoliation order/charge to be issued at the time of trial and that PORT
MORRIS be precluded from introducing any evidence at the time of trial as to the issues relating
to the spoliated discovery and severing the second third-party action due to the lengthy delays
expected in the discovery process in the second third-party action, to the extent that same
discovery can ever be provided by PORT MORRIS due to their cessation of business and
disgorgement of business records and equipment relative to the second third-party action, along
with such other and further relief as this Court may deem just and proper.
3. This is a New York Labor Law action for personal injuries allegedly sustained by
the Plaintiffs, IAN MACDONALD and JAMES ROBERTS, on or about June 13, 2017, while
they were unloading a crate of stone/tile off a flatbed truck via a lift gate during the course of
their employment for Third-Party Defendant/Second Third-Party Plaintiff, PORT MORRIS,
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when the lift gate allegedly malfunctioned, causing the stone and tile to collapse onto the
Plaintiffs.
4. The within Second Third-Party Defendant TEXRON is entitled to summary
judgment and dismissal of PORT MORRIS’ second third-party complaint on the grounds that is
has intentionally sold, disgorged, spoliated and otherwise failed to produce crucial, key and
necessary business records relative to the truck and lift gate, prior and subsequent incidents and
repair of the liftgate, as well as having failed to preserve and make the lift gate and alleged
broken part available for inspection by the second third-party defendant, TEXRON. PORT
MORRIS intentionally sold, disgorged or otherwise lost the lift gate and all business records
during the course of their cessation of operations, knowing that they were necessary and crucial
pieces of evidence to the litigation. Given their production of initial documents, PORT MORRIS
had the records and liftgate in their possession at the initiation of their second third-party action
and subsequently sold them with the business (or lost or destroyed them) rather than maintain
copies/originals for production in the prosecution of their case. Such spoliation was not
accidental but rather an intenional act.
5. The only claims by PORT MORRIS as against TEXRON sound in negligence in
TEXRON’S failure to properly repair the liftgate in question prior to the Plaintiff’s accident.
PORT MORRIS was ostensibly an operating and viable business entity at the time of the filing
of the second third-party action (otherwise they are without standing to bring same and the action
should be dismissed for that reason alone) and accordingly was in possession of all its records
maintained in the ordinary course of business as well as the truck and liftgate in question. PORT
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MORRIS had to be aware of the importance of the records and equipment in question to the
instant lawsuit as itbased its own second third-party action on them, yet they appear to have
made no effort to segregate and preserve the necessary records and equipment for said litigation.
Said failures are irreparably harmful and prejudicial to TEXRON. This spoliation is fatal to
second third-party plaintiff’s claim as against TEXRON and said claims should be dismissed in
their entirety; in the alternative, they should be subject to a finding of spoliation now and the
second third-party action severed given the extensive and complicated nature of discovery to be
held. Discovery in the underlying NY Labor Law action by Plaintiffs is effectively complete and
the current discovery dispute should not effect the underlying lawsuit and third-party action as
against PORT MORRIS. PORT MORRIS is no longer in business and cannot produce any of
the requested discovery, the truck and liftgate in question nor a party deposition witness with
knowledge.
6. In a nutshell, TEXRON is a commercial automotive repair shop and had
performed occassional work on the PORT MORRIS owned truck and lift gate in question (a
2005 Sterling Accerra Flatbed truck ID# 90877) on approximately a dozen occassions from
November of 2010 through May 26, 2017. The accident involving Plaintiffs occurred on June
13, 2017. TEXRON did not work on or repair the truck and/or lift gate in question after
Plaintiffs’ accident. Both Plaintiffs have testified under oath at their respective depositions that
the truck and lift gate in question failed in the same manner at another previous job site (James
Roberts has testified twice that this occurred one to two months prior to the accident in question,
sometime in April or May of 2017 at a 14th and Broadway West Village, NY project). PORT
MORRIS alleges in its instant lawsuit as against TEXRON, that TEXRON performed some
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welding repairs to the supporting brackets or hinges under the lift gate and that these welds were
done improperly causing the lift gate to fail. TEXRON only performed work on the vehicle on
two occassions after the above-described earlier incident involving the liftgate (April/May 2017),
the first on May 8, 2017 and the second on May 26, 2017. (see TEXRON’S repair records on the
vehicle in question attached hereto as Exhibit “E” as disclosed by PORT MORRIS prior to their
cessation of operations and spoliation) On neither of these intervening occassions were any
welding repairs made nor was any work performed on the brackets or hinges of the lift
gate by TEXRON. PORT MORRIS had a professional mechanic and welder, Jason Chadee,
inspect the liftgate mechanisms on June 28, 2017 (within 2 weeks after the accident involving the
Plaintiffs) and he concluded that some prior repair welds on the stopping brackets of the lift gate
were poor and caused the failure on June 13, 2017 injuring the Plaintiffs. Since TEXRON did
not perform any welding repairs to the brackets/hinges in question (according to the records
disclosed by PORT MORRIS) between the earlier lift gate failure and the lift gate failure
involved in the Plaintiff’s accident on June 13, 2017, and PORT MORRIS’ mechanic/welder
expert determined the cause of the failure to be a poor weld, TEXRON is according entitled to a
dismissal of PORT MORRIS’ Second third-party action in its entirety. PORT MORRIS has
not denied that other parties have performed repairs on the truck in question, rather they
have responded that they do not have any such records in their possession. This is a tacit
admission that other non-parties have performed repairs on the truck/lift gate in question. PORT
MORRIS has ceased business operations and has sold,destroyed,spoliated any/all other
business/maintenance/repair records they may have possessed regarding the prior failure, the
intervening welding repair by other non-party entities and the intervening usage records of the
truck/lift gate and, moreover, cannot produce the lift gate in question for examination.
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7. In any event, Plaintiff James Roberts just testified at a further deposition on April
29, 2020 wherein he indicated that after the accident in which he was involved on June 13, 2017,
the truck and lift gate in question were repaired and put back into use by PORT MORRIS.
TEXRON did not perform any work on the truck in question since May 26, 2017, and they did
not repair the lift gate after the Plaintiffs’ accident. According to Mr. Roberts’ sworn testimony
the lift gate failed again, in the same manner, at another job site approximately one month after
the Plaintiff’s accident. In light of all of the foregoing, it is clear that the lift gate in question was
repaired after both the April/May 2017 accident and the June 13, 2017 accident by either PORT
MORRIS directly or another non-party auto repair entity. None of the evidence in this case
serves to establish that TEXRON performed any welding work to the lift gate in question that
caused or contributed to the accident. In fact, the maintenance and repair records disclosed by
PORT MORRIS do independently confirm that Hunts Point Collision, a non-party, actually
replaced and reinforced the lift gate on at least one prior occasion, and upon information and
belief, PORT MORRIS also had the truck and lift gate in question worked on by Metro Truck
Repair, across the street from PORT MORRIS’ facilities. All of the evidence elicited in this
matters serves to exculpate TEXRON from any causative negligence relative to the happening of
the accident in question.
8. As it stands, PORT MORRIS has spoliated any evidence in this case other than as
outlined above (partial repair records of the truck and liftgate in question from February 2010
through May 26, 2017). Pursuant to the above, TEXRON has not and cannot be found liable for
the accident in question, particularly based on PORT MORRIS’ expert mechanic/welder’s
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report/memo. Accordingly, PORT MORRIS should be found to have spoliated any remaining
documentary/physical evidence not already produced (which it had in its possession when they
started the second third-party action and subsequently intentionally disposed of as part of the sale
of their business, without retaining copies), including the lift gate in question, and summary
judgment should be granted and PORT MORRIS’ Second-Third Party action should be
dismissed in its entirety. Alternatively, the Second Third-Party action should be severed in its
entirety as the remaining discovery could take months to years to track down and complete, if
ever given the intentional spoliation, before considering a renewed motion for summary
judgment to dismiss the Second Third-Party Complaint.
PROCEDURAL HISTORY
9. This action was commenced by the filing of a Summons and Complaint on or
about June 30, 2017. Issue was joined on behalf of the Defendants, TURNER CONSTRUCTION
COMPANY (hereinafter “TURNER”) and THE NEW YORK AND PRESBYTERIAN
HOSPITAL i/s/h/a THE NEW YORK AND PRESBYTERIAN HOSPITAL a/k/a THE
SOCIETY OF THE NEW YORK HOSPITAL (hereinafter “NYPH”), by service of an Answer
on or about October 4, 2017. Copies of these pleadings are collectively annexed hereto as
Exhibit “A”.
10. Subsequently, a third-party action was commenced by Defendants/Third-Party
Plaintiffs, TURNER and NYPH, by service of a Third-Party Summons and Complaint on or
about April 17, 2019. Issue was joined on behalf of the Third-Party Defendant, PORT MORRIS,
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by service of an Answer on or about May 9, 2019. Copies of these third-party pleadings are
collectively annexed hereto as Exhibit “B”.
11. On or about June 25, 2019, Third-Party Defendant/Second Third-Party Plaintiff,
PORT MORRIS, commenced a second third-party action by service of a Second Third-Party
Summons and Complaint. Issue was joined on behalf of Second Third-Party Defendant,
TEXRON, by service of an Answer on or about August 6, 2019. Copies of these second third-
party pleadings are collectively annexed hereto as Exhibit “C”.
12. In its Second Third-Party Complaint, PORT MORRIS makes allegations of
negligence against TEXRON based upon its improper repair and welding of brackets on subject
lift gate of the truck owned by PORT MORRIS and involved in Plaintiffs’ accident. See Exhibit
“C”.
13. On or about October 28, 2019, counsel for the within Second Third-Party
Defendant TEXRON served discovery demands upon all parties for discovery and inspection of:
(1) clear color copies of photographs depicting the broken/failed/defective part(s) on the lift gate
alleged to have caused the subject accident; (2) copies of ALL records related to repairs
performed on the truck and lift gate following the subject accident and any photographs of same;
and (3) expert report(s) and/or disclosure(s) of examination(s)/inspection(s) made of the subject
truck and liftgate following the subject accident. Furthermore, counsel for the within Second
Third-Party Defendant served an additional Notice for Discovery & Inspection directed
exclusively at Second Third-Party Plaintiff PORT MORRIS for the inspection of the truck and
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lift gate in question, and a notice to preserve same and make available for inspection or,
alternatively, if said truck and lift gate was no longer in the possession of PORT MORRIS,
demanding to identify the method of disposal of same. Copies of the aforementioned Notices of
Discovery & Inspection, dated October 28, 2019, are annexed hereto as Exhibit “D”.
14. On or about December 19, 2019, PORT MORRIS served a Response to the
aforementioned Notice for Discovery & Inspection, including a CD containing photographs,
partial repair records and an inspection report of the subject lift gate performed provately by
PORT MORRISs two weeks after the accident. A copy of PORT MORRIS’ Discovery Response
dated December 19, 2019 is annexed hereto as Exhibit “E”. The response contained some
photographs, partial prior maintenance and repair records of the truck and liftgate in question
from 2/25/10 through 5/26/17, and a copy of the inspection report of mechanic/welder Jason
Chadee as retained by PORT MORRIS to presumably examine the lift gate component parts and
opine as to the cause of the lift gate failure. No records of the prior failure of the lift gate or its
repair were included, no records of other non-party entity repairs following the prior incident and
the subject incident were included, no records of the repair of the lift gate following Plaintiffs’
accident were included, and no records of the subsequent failure of the liftgate were included.
All are crucial and necessary records relative to the instant litigation and presumably still within
the possession of PORT MORRIS at that time. These records were all subsequently spoliated by
PORT MORRIS and are no longer available. PORT MORRIS has not produced the lift gate for
inspection to date in response to the demans, as that has been spoliated as well.
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15. In furtherance of discovery, the within Second Third-Party Defendant TEXRON
served a Supplemental Notice for Discovery & Inspection upon PORT MORRIS on or about
January 15, 2020, a copy of which is annexed hereto as Exhibit “F”. TEXRON’S supplemental
demands requested the further necessary and crucial documents and information relative to the
truck and liftgate in question including (although these items were specifically enumerated in
the supplemental demand they fell within the general categories of items previously demanded):
1) records relative to the usage history of the truk and lift gate in question; 2) internal
maintenance and repair records for the truck and lift gate in question; 3) maintenance and repair
records from all non-party entities, and; 4) copies of all records relative to the prior failure of the
lift gate including records of repair. Noting that TEXRON, per all records disclosed, did not
perform any welding work on the truck or lift gate in question between the prior accident and the
instant accident and PORT MORRIS’ disclosed mechanic/welder report indicated a weld failure
as the cause of the lift gate failure in the instant accident.
16. PORT MORRIS ultimately responded to TEXRON’S Supplemental Notice for
Discovery and Inspection on or about April 30, 2020. A copy of PORT MORRIS’ response to
TEXRON’S supplemental demand is annexed hereto as Exhibit “G”.
17. PORT MORRIS’ response to the supplemental demands of TEXRON provided
absolutely no addition materials. In fact, PORT MORRIS indicated that it was not in possession
of any business records or the lift gate in question as same was all sold in conjunction with
PORT MORRIS’ bankruptcy and sale of assets. PORT MORRIS has admitted the spoliation of
records they knew or should have known to be necessary to existing litigation. More
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importantly, however, PORT MORRIS has not and admitted that it cannot produce further
records to indicate that TEXRON performed any welding work on the lift gate in question
between the previous accident (same failure) and the Plaintiffs’ current accident. PORT
MORRIS likewise cannot produce the lift gate in question for examination, much less aver that it
is in the same condition as after Plaintiffs’ accident. As such, TEXRON is entitled to summary
judgment dismissing the Second Third-Party Complaint, and any and all cross-claims against it.
18. Plaintiff James Roberts testimony was taken initially on July 12, 2018 (and again
most recently on April 29, 2020). A copy of the transcript of Plaintiff Roberts’ 7/12/18
deposition testimony is annexed hereto as Exhibit “H”. Plaintiff James Roberts provided
supplemental testimony on April 29, 2020 with reference to the later brought third-party actions.
A copy of Roberts’ 4/29/20 transcript is annexed hereto as Exhibit “J”. The testimony
referenced in Plaintiff Roberts’ 2020 testimony is not necessary to the success of the instant
motion, merely supportive.
19. Mr. Roberts testified that the accident in question occurred on June 13, 2017
while he was working for PORT MORRIS on a construction project at New York Presbyterian
Hospital in NYC. Exhibit “H” at p. 45. Specifically the accident occurred while he was on the
lift gate of a flatbed truck, with co-Plaintiff Ian MacDonald and several other PORT MORRIS
workers, and lowering a crate of stone/tile from the flatbed to the ground. Exhibit “H” at pp.
48, 75. More specifically, the liftgate collapsed at an angle towards the ground throwing the
Plaintiffs and other workers off of the lift gate when the driver of the flatbed hit the button to
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lower the lift gate with the workers and load of stones/tile. Exhibit “H” at pp. 48, 75, 78.
PORT MORRIS owned the truck and lift gate in question. Exhibit “H” at p. 102.
20. Mr. Roberts testified that he did not know how the liftgate was attached to the
flatbed truck in question and did not see the operational components (brackets and hinges) of the
lift gate on the date of the accident (6/13/17) in question. Exhibit “H” at pp. 146, 147, 160.
21. Notably, Mr. Roberts testified that he is aware that the lift gate on the same truck
failed in the same manner at a West Village construction site on 14th Street as here only 2 months
(he testified at his 4/29/20 deposition that it was between one and two months) before the
accident that is the subject of the instant lawsuit (6/13/17). Exhibit “H” at pp. 90, 91, 92-93.
Mr. Roberts was unaware how PORT MORRIS had the truck repaired after this prior accident.
Exhibit “H” at p. 94.
22. Mr. Roberts further testified at his April 29, 2020 deposition, that not only was
there a prior similar failure of the truck and lift gate, but that PORT MORRIS had put the truck
and lift gate in question back into service after the instant accident, and there was a subsequent
similar failure of the lift gate at another construction site only one month later. See Exhibit “J”.
No records were provided by PORT MORRIS as to their repair of the lift gate after this accident,
as to the prior accident and repair, nor as to the subsequent accident.
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23. Plaintiff Ian MacDonald’s testimony was taken initially on November 23, 2019.
A copy of the transcript of Plaintiff MacDonald’s 11/23/19 deposition testimony is annexed
hereto as Exhibit “I”.
24. To a large degree, Plaintiff MacDonald’s testimony as to how this accident
occurred and the existence of a prior similar accident mimic one another. To this end, Mr.
MacDonald likewise testified that the accident in question occurred on June 13, 2017 while he
was working for PORT MORRIS on a construction project at New York Presbyterian Hospital
when the lift gate of a flatbed truck collapsed at an angle towards the ground throwing the
Plaintiffs and other workers off of the liftgate after the driver of the flatbed hit the button to
lower the lift gate with the workers and load of stones/tile. Exhibit “I”.
25. Mr. MacDonald likewise did not observe or inspect the mechanical workings of
the lift gate on the day of the accident and was generally unaware of the particulars of the
workings of the lift gate. Exhibit “I” at pp. 66, 76, 151, 176. He was simply aware that the lift
gate “gave out.” Exhibit “I” at p. 56, 74.
26. Lastly, Mr. MacDonald confirmed Mr. Roberts’ testimony that there was a prior
similar failure of the same truck and lift gate at a West Village construction site of 14th Street.
Exhibit “I” at pp. 76, 173. He did not inspect the lift gate after the prior accident in the West
Village either. Exhibit “I” at p. 173.
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27. In light of all of the foregoing, it is clear that the lift gate in question was repaired
after both the prior April/May 2017 accident and the June 13, 2017 accident by either PORT
MORRIS directly or by another non-party auto repair entity. None of the evidence in this case
serves to establish that TEXRON performed any welding work to the lift gate in question that
caused or contributed to the accident. In fact, the maintenance and repair records disclosed by
PORT MORRIS do independently confirm that Hunts Point Collision, a non-party, actually
replaced and reinforced the lift gate on at least one prior occasion, and upon information and
belief, PORT MORRIS also had the truck and lift gate in question worked on by Metro Truck
Repair, across the street from PORT MORRIS’ facilities. All of the evidence elicited in this
matter serves to affirmatively establish TEXRON’S freedom from any causative negligence
relative to the happening of the accident in question. As such, TEXRON is entitled to summary
judgment in its favor dismissing the second third-party complaint. Further, and in the event that
summary judgment is not granted, TEXRON is alternatively entitled to a spoliation order as
against PORT MORRIS relative to the intentional disposal of necessary and crucial evidence by
PORT MORRIS after they were aware of the underlying lawsuit and after they initiated the
second third-party complaint, and that the second third-party action be at a minimum severed.
To this end, however, even if evidence is discovered same is likely inadmissible at any rate given
PORT MORRIS’ insurmountable task of establishing that whatever, if anything, is found is
complete, accurate and in the same condition as it was after the accident in question.
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ARGUMENT
28. Summary judgment is available in all civil actions and to any party to an action.
NY Civ. Prac. L&R Section 3212(a) (McKinney, 1991, 1997-1998 Supp.); see Andre v.
Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 133 (1974). Any party to an action may move
for summary judgment any time after the issue has been joined. NY Civ. Prac. L&R Section
3212(a) (McKinney, 1991, 1997-1998 Supp.).
29. Summary judgment is warranted where there are no issues of fact to be resolved
by a jury. Hartford Accident & Indemnity Company v. Wesolowski, 33 N.Y.2d 169, 172, 315
N.Y.S.2d 895, 898 (1997); Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404,
165 N.Y.S.2d 498 (1957).
30. Thus, summary judgment is a useful remedy to relieve congested court calendars
and to eliminate unnecessary expense to litigants, as well as to the public. Summary judgment
should be granted expeditiously where there is no merit to the cause of action for negligence, just
as it should be afforded to cases brought under other theories of recovery. Blake v. Gardino, 29
N.Y.2d 876, 328 N.Y.S.2d 442 (1972). This effective and necessary mechanism is not unduly
prejudicial to the non-movant because summary judgment is only granted where, as here, it
“clearly appear(s) that no material and triable issue of fact is presented.” Sillman, supra, 3
N.Y.2d at 404, 165 N.Y.S.2d at 505.
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31. The opponent of a motion for summary judgment is required to “present
evidentiary facts sufficient to raise a triable issue of fact.” Freedman v. Chemical Construction
Corp., 43 N.Y.2d 260, 264, 401 N.Y.S.2d 176, 179 (1977). The Appellate Division, First
Department, has opined that in order to meet his burden, the opponent of the motion for
summary judgment:
“is required to assemble, lay bare and reveal his proofs in order to show
his defenses are real and capable of being established at trial, Chemical
Bank v. Queen Wire & Nail, 75 A.D.2d 999 [429 N.Y.S.2d 100], and it
is insufficient to merely set forth averments of factual and legal
conclusions.” (Lerners Stores Corp. v. Park Lane Hosiery Company, 54
A.D.2d 1072 [388 N.Y.S.2d 760]). Tobron Office Furniture Corp. v.
King World Productions, Inc., 161 A.D.2d 355, 555 N.Y.S.2d 315, 316
(1st Dep’t 1990). See also, Goldstein v. Chevron Chemical Company,
Inc., 565 N.Y.S.2d 563 (2d Dep’t 1991); Rastelli v. Goodyear Tire &
Rubber Company, 565 N.Y.S.2d 989, 990 (3d Dep’t 1991).
32. Mere conclusory, conjectural or unsupported contentions have been found to be
insufficient to defeat a motion for summary judgment. Freedman, supra, 43 N.Y.2d at 264, 401
N.Y.S.2d at 179.
33. The opposing party bears the burden of proving the existence of these issues of
fact by establishing proof in admissible form. Zuckerman v. City of New York, 49 N.Y.2d 557,
562, 427 N.Y.S.2d 595, 598 (1980). When a party opposing summary judgment fails to
sufficiently demonstrate a material issue of fact in admissible form requiring trial, the movant is
entitled to summary judgment. Tobron Office Furniture Corp., supra, 161 A.D.2d 357, 555
N.Y.S.2d 316.
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34. Summary judgment has, thus, been looked upon with favor as a “fruitful remedy”
because, by placing the burden upon the opposing party to produce admissible evidence
sufficient to prove a triable issue of fact, it promotes a “disclosure of the facts.” Kahan v. City of
New York, 37 A.D.2d 520, 321 N.Y.S.2d 791, 793 (1st Dep’t 1971). Therefore, where a full
disclosure of the facts shows no triable issue of fact, the Court is required by statute and
propelled by sound policy to grant summary judgment.
35. The Second third-party Defendant TEXRON has clearly demonstrated through
the admissible evidence in this matter that they were free from causative negligence in the failure
of the lift gate in question, and particularly where they did not repair or weld the lift gate
brackets and/or hinges following the prior incident involving the lift gate and the current incident
involving the lift gate in question. Second third-party Plaintiff has disgorged all business records
they maintained during the time period in question and sold the truck and liftgate in question
without permitting inspection by TEXRON. As such, PORT MORRIS has not and cannot come
forward with any additional evidence to oppose the instant motion for summary judgment and/or
dismissal.
36. In the event that the Court declines to grant summary judgment in favor of
TEXRON, based on the foregoing, TEXRON is nonetheless entitled to a dismissal of the Second
Third-party action based on PORT MORRIS’ wilfull and intentional spoliation of key material
evidence which has unduly prejudiced TEXRON.
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FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020
37. In this regard, the available documentary evidence indicates that the Second
Third-Party Plaintiff PORT MORRIS had control over its business records and the subject truck
and lift gate that caused Plaintiffs’ accident, that PORT MORRIS reasonably knew from the time
of accident, the underlying lawsuit and its initiation of a second third-party action that it’s
business records and the subject truck and lift gate was directly relevant to Plaintiffs’ claims for
injuries (as well as their claims over against TEXRON in the second third-party action) and that
PORT MORRIS was under an obligation to preserve said business records and the subject truck
and lift gate in the state it existed at the time of the accident and to make same available for
inspection. PORT MORRIS did not do so. Rather, they intentionally discarded ALL of the
relevant and necessary evidence as part of the sale of their business, maintaining nothing, despite
their then existing knowledge of an ongoing lawsuit. PORT MORRIS has clearly, wilfully and
intentionally spoliated necessary evidence in this matter and accordingly should have their
Second Third-Party complaint struck, if same is not dismissed via the instant summary judgment
motion. At a minimum, a spoliation order should be issued now for the issuance of a charge to
the jury and precluding
Preview
FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------X IAN MACDONALD, JAMES ROBERTS and AFFIRMATION BETH ANN CASSIDY-ROBERTS, IN SUPPORT Plaintiffs, Index #: 155973/2017 -against- TURNER CONSTRUCTION COMPANY and THE NEW YORK AND PRESBYTERIAN HOSPITAL a/k/a THE SOCIETY OF THE NEW YORK HOSPITAL, Defendants. ------------------------------------------------------------------X TURNER CONSTRUCTION COMPANY and THE NEW YORK AND PRESBYTERIAN HOSPITAL, Third-Party Plaintiffs, -against- PORT MORRIS TILE & MARBLE CORP., Third-Party Defendant. ------------------------------------------------------------------X PORT MORRIS TILE & MARBLE CORP., Second Third-Party Plaintiff -against- TEXRON COMMERCIAL AUTO BODY-WORKS, INC., Second Third-Party Defendant. ------------------------------------------------------------------X CURTIS B. GILFILLAN, ESQ., an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury and pursuant to CPLR §2106: 1 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020 1. I am an attorney with the LAW OFFICES OF TOBIAS & KUHN, attorneys for the Second Third-Party Defendant, TEXRON COMMERCIAL AUTO BODY-WORKS, INC. (hereinafter referred to as “TEXRON”). I am fully familiar with the facts and circumstances set forth herein, with the source of my knowledge being the file maintained by my office. 2. I submit this affirmation in support of the instant motion seeking an Order, pursuant to CPLR §3212, granting summary judgment and dismissing the second third-party complaint of the Second Third-Party Plaintiff, PORT MORRIS TILE & MARBLE CORP. (hereinafter referred to as PORT MORRIS), and any and all existing cross-claims against Second Third-Party Defendant, TEXRON, or, alternatively, dismissing Second Third-Party Plaintiff, PORT MORRIS’ complaint due to the wilfull and intentional spoliation of key evidence, or, alternatively for a spoliation order/charge to be issued at the time of trial and that PORT MORRIS be precluded from introducing any evidence at the time of trial as to the issues relating to the spoliated discovery and severing the second third-party action due to the lengthy delays expected in the discovery process in the second third-party action, to the extent that same discovery can ever be provided by PORT MORRIS due to their cessation of business and disgorgement of business records and equipment relative to the second third-party action, along with such other and further relief as this Court may deem just and proper. 3. This is a New York Labor Law action for personal injuries allegedly sustained by the Plaintiffs, IAN MACDONALD and JAMES ROBERTS, on or about June 13, 2017, while they were unloading a crate of stone/tile off a flatbed truck via a lift gate during the course of their employment for Third-Party Defendant/Second Third-Party Plaintiff, PORT MORRIS, 2 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020 when the lift gate allegedly malfunctioned, causing the stone and tile to collapse onto the Plaintiffs. 4. The within Second Third-Party Defendant TEXRON is entitled to summary judgment and dismissal of PORT MORRIS’ second third-party complaint on the grounds that is has intentionally sold, disgorged, spoliated and otherwise failed to produce crucial, key and necessary business records relative to the truck and lift gate, prior and subsequent incidents and repair of the liftgate, as well as having failed to preserve and make the lift gate and alleged broken part available for inspection by the second third-party defendant, TEXRON. PORT MORRIS intentionally sold, disgorged or otherwise lost the lift gate and all business records during the course of their cessation of operations, knowing that they were necessary and crucial pieces of evidence to the litigation. Given their production of initial documents, PORT MORRIS had the records and liftgate in their possession at the initiation of their second third-party action and subsequently sold them with the business (or lost or destroyed them) rather than maintain copies/originals for production in the prosecution of their case. Such spoliation was not accidental but rather an intenional act. 5. The only claims by PORT MORRIS as against TEXRON sound in negligence in TEXRON’S failure to properly repair the liftgate in question prior to the Plaintiff’s accident. PORT MORRIS was ostensibly an operating and viable business entity at the time of the filing of the second third-party action (otherwise they are without standing to bring same and the action should be dismissed for that reason alone) and accordingly was in possession of all its records maintained in the ordinary course of business as well as the truck and liftgate in question. PORT 3 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020 MORRIS had to be aware of the importance of the records and equipment in question to the instant lawsuit as itbased its own second third-party action on them, yet they appear to have made no effort to segregate and preserve the necessary records and equipment for said litigation. Said failures are irreparably harmful and prejudicial to TEXRON. This spoliation is fatal to second third-party plaintiff’s claim as against TEXRON and said claims should be dismissed in their entirety; in the alternative, they should be subject to a finding of spoliation now and the second third-party action severed given the extensive and complicated nature of discovery to be held. Discovery in the underlying NY Labor Law action by Plaintiffs is effectively complete and the current discovery dispute should not effect the underlying lawsuit and third-party action as against PORT MORRIS. PORT MORRIS is no longer in business and cannot produce any of the requested discovery, the truck and liftgate in question nor a party deposition witness with knowledge. 6. In a nutshell, TEXRON is a commercial automotive repair shop and had performed occassional work on the PORT MORRIS owned truck and lift gate in question (a 2005 Sterling Accerra Flatbed truck ID# 90877) on approximately a dozen occassions from November of 2010 through May 26, 2017. The accident involving Plaintiffs occurred on June 13, 2017. TEXRON did not work on or repair the truck and/or lift gate in question after Plaintiffs’ accident. Both Plaintiffs have testified under oath at their respective depositions that the truck and lift gate in question failed in the same manner at another previous job site (James Roberts has testified twice that this occurred one to two months prior to the accident in question, sometime in April or May of 2017 at a 14th and Broadway West Village, NY project). PORT MORRIS alleges in its instant lawsuit as against TEXRON, that TEXRON performed some 4 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020 welding repairs to the supporting brackets or hinges under the lift gate and that these welds were done improperly causing the lift gate to fail. TEXRON only performed work on the vehicle on two occassions after the above-described earlier incident involving the liftgate (April/May 2017), the first on May 8, 2017 and the second on May 26, 2017. (see TEXRON’S repair records on the vehicle in question attached hereto as Exhibit “E” as disclosed by PORT MORRIS prior to their cessation of operations and spoliation) On neither of these intervening occassions were any welding repairs made nor was any work performed on the brackets or hinges of the lift gate by TEXRON. PORT MORRIS had a professional mechanic and welder, Jason Chadee, inspect the liftgate mechanisms on June 28, 2017 (within 2 weeks after the accident involving the Plaintiffs) and he concluded that some prior repair welds on the stopping brackets of the lift gate were poor and caused the failure on June 13, 2017 injuring the Plaintiffs. Since TEXRON did not perform any welding repairs to the brackets/hinges in question (according to the records disclosed by PORT MORRIS) between the earlier lift gate failure and the lift gate failure involved in the Plaintiff’s accident on June 13, 2017, and PORT MORRIS’ mechanic/welder expert determined the cause of the failure to be a poor weld, TEXRON is according entitled to a dismissal of PORT MORRIS’ Second third-party action in its entirety. PORT MORRIS has not denied that other parties have performed repairs on the truck in question, rather they have responded that they do not have any such records in their possession. This is a tacit admission that other non-parties have performed repairs on the truck/lift gate in question. PORT MORRIS has ceased business operations and has sold,destroyed,spoliated any/all other business/maintenance/repair records they may have possessed regarding the prior failure, the intervening welding repair by other non-party entities and the intervening usage records of the truck/lift gate and, moreover, cannot produce the lift gate in question for examination. 5 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020 7. In any event, Plaintiff James Roberts just testified at a further deposition on April 29, 2020 wherein he indicated that after the accident in which he was involved on June 13, 2017, the truck and lift gate in question were repaired and put back into use by PORT MORRIS. TEXRON did not perform any work on the truck in question since May 26, 2017, and they did not repair the lift gate after the Plaintiffs’ accident. According to Mr. Roberts’ sworn testimony the lift gate failed again, in the same manner, at another job site approximately one month after the Plaintiff’s accident. In light of all of the foregoing, it is clear that the lift gate in question was repaired after both the April/May 2017 accident and the June 13, 2017 accident by either PORT MORRIS directly or another non-party auto repair entity. None of the evidence in this case serves to establish that TEXRON performed any welding work to the lift gate in question that caused or contributed to the accident. In fact, the maintenance and repair records disclosed by PORT MORRIS do independently confirm that Hunts Point Collision, a non-party, actually replaced and reinforced the lift gate on at least one prior occasion, and upon information and belief, PORT MORRIS also had the truck and lift gate in question worked on by Metro Truck Repair, across the street from PORT MORRIS’ facilities. All of the evidence elicited in this matters serves to exculpate TEXRON from any causative negligence relative to the happening of the accident in question. 8. As it stands, PORT MORRIS has spoliated any evidence in this case other than as outlined above (partial repair records of the truck and liftgate in question from February 2010 through May 26, 2017). Pursuant to the above, TEXRON has not and cannot be found liable for the accident in question, particularly based on PORT MORRIS’ expert mechanic/welder’s 6 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020 report/memo. Accordingly, PORT MORRIS should be found to have spoliated any remaining documentary/physical evidence not already produced (which it had in its possession when they started the second third-party action and subsequently intentionally disposed of as part of the sale of their business, without retaining copies), including the lift gate in question, and summary judgment should be granted and PORT MORRIS’ Second-Third Party action should be dismissed in its entirety. Alternatively, the Second Third-Party action should be severed in its entirety as the remaining discovery could take months to years to track down and complete, if ever given the intentional spoliation, before considering a renewed motion for summary judgment to dismiss the Second Third-Party Complaint. PROCEDURAL HISTORY 9. This action was commenced by the filing of a Summons and Complaint on or about June 30, 2017. Issue was joined on behalf of the Defendants, TURNER CONSTRUCTION COMPANY (hereinafter “TURNER”) and THE NEW YORK AND PRESBYTERIAN HOSPITAL i/s/h/a THE NEW YORK AND PRESBYTERIAN HOSPITAL a/k/a THE SOCIETY OF THE NEW YORK HOSPITAL (hereinafter “NYPH”), by service of an Answer on or about October 4, 2017. Copies of these pleadings are collectively annexed hereto as Exhibit “A”. 10. Subsequently, a third-party action was commenced by Defendants/Third-Party Plaintiffs, TURNER and NYPH, by service of a Third-Party Summons and Complaint on or about April 17, 2019. Issue was joined on behalf of the Third-Party Defendant, PORT MORRIS, 7 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020 by service of an Answer on or about May 9, 2019. Copies of these third-party pleadings are collectively annexed hereto as Exhibit “B”. 11. On or about June 25, 2019, Third-Party Defendant/Second Third-Party Plaintiff, PORT MORRIS, commenced a second third-party action by service of a Second Third-Party Summons and Complaint. Issue was joined on behalf of Second Third-Party Defendant, TEXRON, by service of an Answer on or about August 6, 2019. Copies of these second third- party pleadings are collectively annexed hereto as Exhibit “C”. 12. In its Second Third-Party Complaint, PORT MORRIS makes allegations of negligence against TEXRON based upon its improper repair and welding of brackets on subject lift gate of the truck owned by PORT MORRIS and involved in Plaintiffs’ accident. See Exhibit “C”. 13. On or about October 28, 2019, counsel for the within Second Third-Party Defendant TEXRON served discovery demands upon all parties for discovery and inspection of: (1) clear color copies of photographs depicting the broken/failed/defective part(s) on the lift gate alleged to have caused the subject accident; (2) copies of ALL records related to repairs performed on the truck and lift gate following the subject accident and any photographs of same; and (3) expert report(s) and/or disclosure(s) of examination(s)/inspection(s) made of the subject truck and liftgate following the subject accident. Furthermore, counsel for the within Second Third-Party Defendant served an additional Notice for Discovery & Inspection directed exclusively at Second Third-Party Plaintiff PORT MORRIS for the inspection of the truck and 8 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020 lift gate in question, and a notice to preserve same and make available for inspection or, alternatively, if said truck and lift gate was no longer in the possession of PORT MORRIS, demanding to identify the method of disposal of same. Copies of the aforementioned Notices of Discovery & Inspection, dated October 28, 2019, are annexed hereto as Exhibit “D”. 14. On or about December 19, 2019, PORT MORRIS served a Response to the aforementioned Notice for Discovery & Inspection, including a CD containing photographs, partial repair records and an inspection report of the subject lift gate performed provately by PORT MORRISs two weeks after the accident. A copy of PORT MORRIS’ Discovery Response dated December 19, 2019 is annexed hereto as Exhibit “E”. The response contained some photographs, partial prior maintenance and repair records of the truck and liftgate in question from 2/25/10 through 5/26/17, and a copy of the inspection report of mechanic/welder Jason Chadee as retained by PORT MORRIS to presumably examine the lift gate component parts and opine as to the cause of the lift gate failure. No records of the prior failure of the lift gate or its repair were included, no records of other non-party entity repairs following the prior incident and the subject incident were included, no records of the repair of the lift gate following Plaintiffs’ accident were included, and no records of the subsequent failure of the liftgate were included. All are crucial and necessary records relative to the instant litigation and presumably still within the possession of PORT MORRIS at that time. These records were all subsequently spoliated by PORT MORRIS and are no longer available. PORT MORRIS has not produced the lift gate for inspection to date in response to the demans, as that has been spoliated as well. 9 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020 15. In furtherance of discovery, the within Second Third-Party Defendant TEXRON served a Supplemental Notice for Discovery & Inspection upon PORT MORRIS on or about January 15, 2020, a copy of which is annexed hereto as Exhibit “F”. TEXRON’S supplemental demands requested the further necessary and crucial documents and information relative to the truck and liftgate in question including (although these items were specifically enumerated in the supplemental demand they fell within the general categories of items previously demanded): 1) records relative to the usage history of the truk and lift gate in question; 2) internal maintenance and repair records for the truck and lift gate in question; 3) maintenance and repair records from all non-party entities, and; 4) copies of all records relative to the prior failure of the lift gate including records of repair. Noting that TEXRON, per all records disclosed, did not perform any welding work on the truck or lift gate in question between the prior accident and the instant accident and PORT MORRIS’ disclosed mechanic/welder report indicated a weld failure as the cause of the lift gate failure in the instant accident. 16. PORT MORRIS ultimately responded to TEXRON’S Supplemental Notice for Discovery and Inspection on or about April 30, 2020. A copy of PORT MORRIS’ response to TEXRON’S supplemental demand is annexed hereto as Exhibit “G”. 17. PORT MORRIS’ response to the supplemental demands of TEXRON provided absolutely no addition materials. In fact, PORT MORRIS indicated that it was not in possession of any business records or the lift gate in question as same was all sold in conjunction with PORT MORRIS’ bankruptcy and sale of assets. PORT MORRIS has admitted the spoliation of records they knew or should have known to be necessary to existing litigation. More 10 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020 importantly, however, PORT MORRIS has not and admitted that it cannot produce further records to indicate that TEXRON performed any welding work on the lift gate in question between the previous accident (same failure) and the Plaintiffs’ current accident. PORT MORRIS likewise cannot produce the lift gate in question for examination, much less aver that it is in the same condition as after Plaintiffs’ accident. As such, TEXRON is entitled to summary judgment dismissing the Second Third-Party Complaint, and any and all cross-claims against it. 18. Plaintiff James Roberts testimony was taken initially on July 12, 2018 (and again most recently on April 29, 2020). A copy of the transcript of Plaintiff Roberts’ 7/12/18 deposition testimony is annexed hereto as Exhibit “H”. Plaintiff James Roberts provided supplemental testimony on April 29, 2020 with reference to the later brought third-party actions. A copy of Roberts’ 4/29/20 transcript is annexed hereto as Exhibit “J”. The testimony referenced in Plaintiff Roberts’ 2020 testimony is not necessary to the success of the instant motion, merely supportive. 19. Mr. Roberts testified that the accident in question occurred on June 13, 2017 while he was working for PORT MORRIS on a construction project at New York Presbyterian Hospital in NYC. Exhibit “H” at p. 45. Specifically the accident occurred while he was on the lift gate of a flatbed truck, with co-Plaintiff Ian MacDonald and several other PORT MORRIS workers, and lowering a crate of stone/tile from the flatbed to the ground. Exhibit “H” at pp. 48, 75. More specifically, the liftgate collapsed at an angle towards the ground throwing the Plaintiffs and other workers off of the lift gate when the driver of the flatbed hit the button to 11 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020 lower the lift gate with the workers and load of stones/tile. Exhibit “H” at pp. 48, 75, 78. PORT MORRIS owned the truck and lift gate in question. Exhibit “H” at p. 102. 20. Mr. Roberts testified that he did not know how the liftgate was attached to the flatbed truck in question and did not see the operational components (brackets and hinges) of the lift gate on the date of the accident (6/13/17) in question. Exhibit “H” at pp. 146, 147, 160. 21. Notably, Mr. Roberts testified that he is aware that the lift gate on the same truck failed in the same manner at a West Village construction site on 14th Street as here only 2 months (he testified at his 4/29/20 deposition that it was between one and two months) before the accident that is the subject of the instant lawsuit (6/13/17). Exhibit “H” at pp. 90, 91, 92-93. Mr. Roberts was unaware how PORT MORRIS had the truck repaired after this prior accident. Exhibit “H” at p. 94. 22. Mr. Roberts further testified at his April 29, 2020 deposition, that not only was there a prior similar failure of the truck and lift gate, but that PORT MORRIS had put the truck and lift gate in question back into service after the instant accident, and there was a subsequent similar failure of the lift gate at another construction site only one month later. See Exhibit “J”. No records were provided by PORT MORRIS as to their repair of the lift gate after this accident, as to the prior accident and repair, nor as to the subsequent accident. 12 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020 23. Plaintiff Ian MacDonald’s testimony was taken initially on November 23, 2019. A copy of the transcript of Plaintiff MacDonald’s 11/23/19 deposition testimony is annexed hereto as Exhibit “I”. 24. To a large degree, Plaintiff MacDonald’s testimony as to how this accident occurred and the existence of a prior similar accident mimic one another. To this end, Mr. MacDonald likewise testified that the accident in question occurred on June 13, 2017 while he was working for PORT MORRIS on a construction project at New York Presbyterian Hospital when the lift gate of a flatbed truck collapsed at an angle towards the ground throwing the Plaintiffs and other workers off of the liftgate after the driver of the flatbed hit the button to lower the lift gate with the workers and load of stones/tile. Exhibit “I”. 25. Mr. MacDonald likewise did not observe or inspect the mechanical workings of the lift gate on the day of the accident and was generally unaware of the particulars of the workings of the lift gate. Exhibit “I” at pp. 66, 76, 151, 176. He was simply aware that the lift gate “gave out.” Exhibit “I” at p. 56, 74. 26. Lastly, Mr. MacDonald confirmed Mr. Roberts’ testimony that there was a prior similar failure of the same truck and lift gate at a West Village construction site of 14th Street. Exhibit “I” at pp. 76, 173. He did not inspect the lift gate after the prior accident in the West Village either. Exhibit “I” at p. 173. 13 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020 27. In light of all of the foregoing, it is clear that the lift gate in question was repaired after both the prior April/May 2017 accident and the June 13, 2017 accident by either PORT MORRIS directly or by another non-party auto repair entity. None of the evidence in this case serves to establish that TEXRON performed any welding work to the lift gate in question that caused or contributed to the accident. In fact, the maintenance and repair records disclosed by PORT MORRIS do independently confirm that Hunts Point Collision, a non-party, actually replaced and reinforced the lift gate on at least one prior occasion, and upon information and belief, PORT MORRIS also had the truck and lift gate in question worked on by Metro Truck Repair, across the street from PORT MORRIS’ facilities. All of the evidence elicited in this matter serves to affirmatively establish TEXRON’S freedom from any causative negligence relative to the happening of the accident in question. As such, TEXRON is entitled to summary judgment in its favor dismissing the second third-party complaint. Further, and in the event that summary judgment is not granted, TEXRON is alternatively entitled to a spoliation order as against PORT MORRIS relative to the intentional disposal of necessary and crucial evidence by PORT MORRIS after they were aware of the underlying lawsuit and after they initiated the second third-party complaint, and that the second third-party action be at a minimum severed. To this end, however, even if evidence is discovered same is likely inadmissible at any rate given PORT MORRIS’ insurmountable task of establishing that whatever, if anything, is found is complete, accurate and in the same condition as it was after the accident in question. 14 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020 ARGUMENT 28. Summary judgment is available in all civil actions and to any party to an action. NY Civ. Prac. L&R Section 3212(a) (McKinney, 1991, 1997-1998 Supp.); see Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 133 (1974). Any party to an action may move for summary judgment any time after the issue has been joined. NY Civ. Prac. L&R Section 3212(a) (McKinney, 1991, 1997-1998 Supp.). 29. Summary judgment is warranted where there are no issues of fact to be resolved by a jury. Hartford Accident & Indemnity Company v. Wesolowski, 33 N.Y.2d 169, 172, 315 N.Y.S.2d 895, 898 (1997); Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498 (1957). 30. Thus, summary judgment is a useful remedy to relieve congested court calendars and to eliminate unnecessary expense to litigants, as well as to the public. Summary judgment should be granted expeditiously where there is no merit to the cause of action for negligence, just as it should be afforded to cases brought under other theories of recovery. Blake v. Gardino, 29 N.Y.2d 876, 328 N.Y.S.2d 442 (1972). This effective and necessary mechanism is not unduly prejudicial to the non-movant because summary judgment is only granted where, as here, it “clearly appear(s) that no material and triable issue of fact is presented.” Sillman, supra, 3 N.Y.2d at 404, 165 N.Y.S.2d at 505. 15 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020 31. The opponent of a motion for summary judgment is required to “present evidentiary facts sufficient to raise a triable issue of fact.” Freedman v. Chemical Construction Corp., 43 N.Y.2d 260, 264, 401 N.Y.S.2d 176, 179 (1977). The Appellate Division, First Department, has opined that in order to meet his burden, the opponent of the motion for summary judgment: “is required to assemble, lay bare and reveal his proofs in order to show his defenses are real and capable of being established at trial, Chemical Bank v. Queen Wire & Nail, 75 A.D.2d 999 [429 N.Y.S.2d 100], and it is insufficient to merely set forth averments of factual and legal conclusions.” (Lerners Stores Corp. v. Park Lane Hosiery Company, 54 A.D.2d 1072 [388 N.Y.S.2d 760]). Tobron Office Furniture Corp. v. King World Productions, Inc., 161 A.D.2d 355, 555 N.Y.S.2d 315, 316 (1st Dep’t 1990). See also, Goldstein v. Chevron Chemical Company, Inc., 565 N.Y.S.2d 563 (2d Dep’t 1991); Rastelli v. Goodyear Tire & Rubber Company, 565 N.Y.S.2d 989, 990 (3d Dep’t 1991). 32. Mere conclusory, conjectural or unsupported contentions have been found to be insufficient to defeat a motion for summary judgment. Freedman, supra, 43 N.Y.2d at 264, 401 N.Y.S.2d at 179. 33. The opposing party bears the burden of proving the existence of these issues of fact by establishing proof in admissible form. Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 598 (1980). When a party opposing summary judgment fails to sufficiently demonstrate a material issue of fact in admissible form requiring trial, the movant is entitled to summary judgment. Tobron Office Furniture Corp., supra, 161 A.D.2d 357, 555 N.Y.S.2d 316. 16 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020 34. Summary judgment has, thus, been looked upon with favor as a “fruitful remedy” because, by placing the burden upon the opposing party to produce admissible evidence sufficient to prove a triable issue of fact, it promotes a “disclosure of the facts.” Kahan v. City of New York, 37 A.D.2d 520, 321 N.Y.S.2d 791, 793 (1st Dep’t 1971). Therefore, where a full disclosure of the facts shows no triable issue of fact, the Court is required by statute and propelled by sound policy to grant summary judgment. 35. The Second third-party Defendant TEXRON has clearly demonstrated through the admissible evidence in this matter that they were free from causative negligence in the failure of the lift gate in question, and particularly where they did not repair or weld the lift gate brackets and/or hinges following the prior incident involving the lift gate and the current incident involving the lift gate in question. Second third-party Plaintiff has disgorged all business records they maintained during the time period in question and sold the truck and liftgate in question without permitting inspection by TEXRON. As such, PORT MORRIS has not and cannot come forward with any additional evidence to oppose the instant motion for summary judgment and/or dismissal. 36. In the event that the Court declines to grant summary judgment in favor of TEXRON, based on the foregoing, TEXRON is nonetheless entitled to a dismissal of the Second Third-party action based on PORT MORRIS’ wilfull and intentional spoliation of key material evidence which has unduly prejudiced TEXRON. 17 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2020 03:16 PM INDEX NO. 155973/2017 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/18/2020 37. In this regard, the available documentary evidence indicates that the Second Third-Party Plaintiff PORT MORRIS had control over its business records and the subject truck and lift gate that caused Plaintiffs’ accident, that PORT MORRIS reasonably knew from the time of accident, the underlying lawsuit and its initiation of a second third-party action that it’s business records and the subject truck and lift gate was directly relevant to Plaintiffs’ claims for injuries (as well as their claims over against TEXRON in the second third-party action) and that PORT MORRIS was under an obligation to preserve said business records and the subject truck and lift gate in the state it existed at the time of the accident and to make same available for inspection. PORT MORRIS did not do so. Rather, they intentionally discarded ALL of the relevant and necessary evidence as part of the sale of their business, maintaining nothing, despite their then existing knowledge of an ongoing lawsuit. PORT MORRIS has clearly, wilfully and intentionally spoliated necessary evidence in this matter and accordingly should have their Second Third-Party complaint struck, if same is not dismissed via the instant summary judgment motion. At a minimum, a spoliation order should be issued now for the issuance of a charge to the jury and precluding