Defendants New England Orthopedic & Prosthetic Systems, LLC ("New England") and Ryan D. Murphy (together "the moving defendants") move for summary judgment dismissing the complaint against them.^[FN1] Plaintiffs Thomas Buda and Gloria Buda oppose the motion. For the reasons set forth below the motion is denied.

Murphy testified that after the foot impression is taken, it is filled with plaster of paris and then modified according to the measurements taken. According to Murphy, measuring the foot for orthotic inserts is not done with a standard measurement but rather that there are "different points of reference on the foot that you need to measure in order for the proper place for the pads to provide the support system." In other words, each orthotic insert is fit specifically to the feet of the individual who will wear them.

In his affidavit, Murphy states that after the orthotics were made, he delivered the orthotics and the shoe to the plaintiff, at the hospital "in the presence of [Buda's] treating doctors" and that Buda wore the orthotics in the shoe in front of him and the doctors, and that "plaintiff's feet were not rubbing against the inside leather of the shoes." Murphy further stated that the positioning of Buda's feet allowed him to observe whether either foot was rubbing.

At his deposition on February 12, 2004, Buda testified in apparent contrast to the statements in Murphy's affidavit, that he picked up and tried on the orthotics and shoes at New England's store. Buda testified that the orthotics and shoes did not "feel bad" and "appeared to be fine" but that he had neuropathy which limited his feeling in his right foot. At the time he picked up the shoes, Buda signed a document stating that he was satisfied with the orthotic and shoes.

Buda testified that he wore the orthopedic devices as directed for four days, checking nightly for any irritation on either foot. On the morning of the fifth day, Buda woke up to find "strawberries" or redness on both feet. The right foot, which sustained greater injuries, had redness "on each of the toes, the right side at the top near the pinkie, the small toe, and the heel." Buda testified that he immediately ceased wearing the orthopedic devices and began treatment on both feet. However, the sores on Buda's right foot did not respond to the treatment. On February 12, 2001, Buda underwent surgery on his right foot to treat the infection.

Buda again underwent surgery in July 2002 to alleviate ulcers on the bottom of his right foot caused by a condition known as Charcot Foot. Charcot Foot is apparently caused by a breakdown in the arch as a result of the protruding bone resting upon pressure to the bottom of the foot. As of September 2003, Buda asserts that he was still treating and dressing the wounds allegedly caused by the orthopedic shoes and orthotic inserts.

Defendants move for summary judgment, arguing it is not liable to plaintiffs for any defect in the orthotic inserts since the record shows that Murphy fitted the inserts according to detailed specifications from Buda's physician. In support of their position, the moving defendants point to case law stating that a manufacturer is not liable for design defects when a product is made based on detailed specifications required by the purchaser. Further, the moving defendants assert that plaintiffs failed to provide any evidence that the orthopedic shoes and orthotic inserts contained a manufacturing flaw, and point out that Buda signed a document indicating that he was satisfied with the orthotics and shoes. Lastly, the moving defendants contend that since Buda discarded the allegedly defective orthotic inserts, there has been spoliation of evidence which has prejudiced them and therefore the action should therefore be dismissed.

Plaintiffs oppose the motion for summary judgment, asserting that there are triable issues of fact concerning whether the orthopedic shoes and/or orthopedic inserts were negligently made and/or fitted to Buda's feet. Plaintiffs argue that case law cited by the moving defendants regarding manufacturer liability does not apply to the circumstances of this action. Plaintiffs also [*3]assert that spoliation sanctions are not warranted here since Buda did not intentionally discard the orthotic inserts, and that there is other evidence supporting plaintiffs' claims.

Contrary to moving defendants' argument, it cannot be said that they are entitled to judgment as a matter of law based on evidence that the orthotic insert was made to the specifications of plaintiff's physician. This argument is premised on precedent holding that a manufacturer is not liable for an alleged design defect when the manufacturer has produced the product at issue in accordance with the detailed specifications required by the purchaser, unless the specifications are so patently defective that a manufacturer of ordinary product would be placed on notice that the product is dangerous and likely to cause injury. Houlihan v. Morrison Knudsen Corporation, 2 AD3d 493 (2nd Dept. 2003). See e.g., Daley v Gemini Bakery Equipment Co, 228 AD2d 210 (1st Dept. 1996); Lonigro v. TDC Electronics, Inc., 215 AD2d 534 (2nd Dept. 1995).

Unlike the above-cited case law relied on by the defendants, which involved products that are mass produced according to a purchaser's specification, the product at issue here was made according to the mold taken by defendant of Buda's foot. The purported detailed specification in Buda's physician's prescription, merely stated "extra-depth, extra-width shoes with custom molded dual density orthotic." Rather than simply creating the orthotic insert based on these instructions, the moving defendants made the specific mold based on their own impressions and measurements. As there are issues of material fact as to whether the moving defendants using such measurements and molds, made defective orthotic inserts and shoes, the moving defendants have not met their burden of demonstrating their entitlement to summary judgment.

Moreover, although Murphy states in his affidavit that Buda's foot was not rubbing against the leather of the shoe and that Buda's treating doctors observed him after he tried on the orthotics and shoes, such statements are insufficient to establish as a matter of law that the shoes and orthotics fit correctly in light of Buda's testimony to the contrary. Furthermore, that Buda signed a document indicating that he was satisfied with the orthotics and shoes is insufficient to relieve the moving defendants of liability. See generally, Gross v. Sweet, 49 NY2d 102 (1979).

The next issue is whether complaint should be dismissed based on Buda's discarding of the orthotic inserts in 2002, prior to the commencement of the action. The moving defendants assert that they will be left without means to show how the foot was positioned in the shoe and thereby prove that the orthotic inserts were not defective. Under New York law, spoliation sanctions are appropriate where a litigant, intentionally or negligently, disposes of crucial items of evidence involved in an accident before the adversary has an opportunity to inspect them." See Kirkland v New York City Housing Authority, 236 AD2d 170, 175 (1st Dept 1997). Moreover, under certain circumstances, spoliation sanctions have been held to be appropriate [*4]even where the evidence at issue was destroyed prior to the issuance of any discovery order seeking such evidence and where the destruction of evidence has not been shown to be intentional or in bad faith. Id.; See also Squitiera v City of New York, 248 AD2d 201 (1st Dept 1998).

However, spoliation sanctions are not warranted unless the party seeking such sanctions meets its burden of is establishing that the evidence destroyed is crucial to the moving parties' case. See Cameron v. Nissan 112 Sales Corp., 10 AD3d 591 (2d Dept. 2004), Tawedros v. St. Vincent's Hospital of New York, 281 AD2d 184 (1st Dept 2001). Furthermore, the evidence before the court indicates that the orthotics were discarded in 2002 and does not indicate whether this occurred prior to discovery or to the commencement of this action. Based on this evidence, it cannot be determined whether the destruction was intentional or in bad faith.

In Cameron, the Appellate Division, Second Department found that the defendant car manufacturer had not met its burden of demonstrating that the destruction of the vehicle in issue prior to the commencement of the lawsuit would totally compromise the defense or leave defendant without means to defend the action. In declining to impose spoliation sanctions, the court noted that defendant's papers did not include any expert proof and contained only its counsel's bare assertions that absent inspection of the vehicle, the defendant would be unable to defend the case. Id at 592.

Here, as in Cameron supra, the moving defendants have not met their burden of demonstrating that the destruction of evidence would leave them unable to defend this action. The moving defendants base their position on Murphy's conclusory statement that by discarding the inserts Buda has "effectively precluded him from being able to show...how [Buda's] feet were positioned inside the shoe and to demonstrate that [Buda's] feet were not rubbing inside the shoes."

At the outset, it is noted that since Buda stopped using the orthotics, he has undergone multiple surgeries to his right foot and, thus, the evidentiary value of the orthotics as to whether they fit properly at the time of Buda's use is unclear. However, the orthotics would indicate whether they were made according to Buda's physician's prescription and according to the measurements and molds taken by Murphy. On the other hand, such evidence would have no impact on whether the shoes did not fit properly as alleged by plaintiffs because Murphy's measurements, or impressions for the mold, were incorrect.

New England fails to state whether it possesses any evidence regarding the manufacturing of the orthotics, such as records of the measurements taken or retention of the mold used to make the orthotics. Furthermore, New England fails to submit an expert affidavit delineating the necessity of the orthotics in defending the action.

Therefore, as defendants have not met their burden, dismissal of the complaint based on spoliation is not appropriately granted. In the absence of an expert affidavit from defendants regarding the spoliation issue, a clear delineation of plaintiff's theory of liability, expert evidence or other proof in support of plaintiffs' theory of liability and defendants' defense, the court cannot on this record determine an appropriate remedy or sanction for the destruction of the orthotics.

The court thus reserves decision as to the appropriate sanction or remedy and directs the plaintiffs and defendants to submit by March 30, 2005, a three page memorandum of law, and accompanying expert affidavits, together with exchanges from such experts, delineating their [*5]respective theories of liability and defense, and the witnesses who will establish such proof, and statements as to the nature of the witnesses' testimony.

ORDERED that the defendants' motion for an order granting summary judgment is denied; and it is further

ORDERED that the defendants' motion for an order granting spoliation sanctions is denied; and it is further

ORDERED that the pre-trial conference shall be held in Part 11, room 351, 60 Centre Street, New York, NY, on March 31, 2005 at 3:00 pm; and it is further

ORDERED that on or before March 30, 2005, the parties shall serve their respective adversaries and provide to the court the submissions required by this decision and order

DATED: March , 2005.________________________

J.S.C.