This action arises out of plaintiff Robert Russo's (plaintiff) complaint grounded in defendants BMW of North America, LLC and BMW of Manhattan, Inc.'s (together, BMW) alleged breach of contract and violation of the NY General Business Law § 198-a (Lemon Law). BMW now moves, pursuant to CPLR 3126, for an order dismissing plaintiff's complaint based on spoliation of evidence. In the alternative, BMW seeks to have the plaintiff precluded from offering the alleged spoliated evidence at trial. BMW also seeks to vacate the plaintiff's demand for a jury trial, and is requesting costs associated with this motion.

On May 25, 2007, plaintiff leased a new 2008 BMW 5501 automobile (2008 BMW) from BMW of Manhattan, Inc. The lease had a scheduled term of 30 months, which was set to expire on November 25, 2009. Plaintiff also received written warranties along with the purchase of his leased car which would require BMW to repair or adjust all defective parts, with limited exceptions. According to plaintiff, within the first year, and continuing throughout the terms of [*2]the lease, the vehicle required multiple repairs. Plaintiff maintains that the 2008 BMW sustained multiple electrical, structural and driveability defects which were not proficiently repaired within a reasonable amount of time. Plaintiff continues that the 2008 BMW "continues to contain defects which substantially impair the use, market value and/or safety of the automobile to the Plaintiff." BMW's Exhibit A, Complaint, at 10. Plaintiff alleges that the 2008 BMW was out of service for at least 35 days.

The instant action was commenced in December 2008 when plaintiff filed a complaint containing five causes of action: breach of contract, breach of express warranty, breach of implied warranty of merchantability, violation of the Lemon Law and revocation of acceptance. In his complaint, plaintiff seeks equitable relief in the form of restitution, revocation and the return of expenses expended by him as a result of his lease. Plaintiff also seeks money damages and requests a jury trial.

On March 31, 2009, this court signed a preliminary conference order which stated that the plaintiff's deposition was to be held on or before July 9, 2009 and that the defendants' deposition was to be held on or before July 29, 2009. The order also indicated that the "[i]nspection of vehicle shall be held within 30 days of [plaintiff's] deposition." BMW's Exhibit D.

According to BMW, it requested to see the 2008 BMW for inspection in April 2010. At that time, BMW was informed by plaintiff's counsel that plaintiff no longer was in possession of the vehicle.

BMW asserts that it had no reason to suspect that plaintiff would dispose of the vehicle prior to BMW's inspection. BMW maintains that plaintiff knew that BMW would be inspecting the vehicle since it told plaintiff via discovery demands and other interrogatories that it would be doing so. According to BMW, since plaintiff disposed of the vehicle, plaintiff destroyed key evidence and now, since BMW is prejudiced, plaintiff's complaint should be dismissed.

Plaintiff returned the vehicle one month prior to the expiration of his lease, which was on November 25, 2009. Plaintiff indicates that he has always provided BMW with ample opportunity to inspect the 2008 BMW, and that BMW never requested a formal inspection of the vehicle. Counsel for plaintiff contends, "[BMW] never contacted Plaintiff to schedule an inspection." Schwartz Affirmation, ¶ 12. The compliance conference order indicates that an inspection of the vehicle was to be held within 30 days of the plaintiff's deposition. Plaintiff was deposed on July 23, 2009. Counsel for plaintiff maintains that he was not contacted for an inspection of the vehicle until at least April 2010, which was at least one year after plaintiff filed the answer to BMW's interrogatories. In his interrogatories, which were served to defendants in April 2009, plaintiff had written that he would make the vehicle available to defendants for inspection at a mutually agreeable time.

Plaintiff continues that, as the defendants never requested an inspection of the vehicle prior to the lease expiration terms, he did not spoliate the vehicle, because he simply returned the vehicle at the conclusion of the lease, which was required of him.

CPLR 3126 provides that "a court may strike a pleading as a sanction against a party who refuses to obey an order for disclosure. A court may strike an answer only when the moving party establishes a clear showing that the failure to comply is willful, contumacious or in bad [*3]faith [internal quotation marks and citations omitted]." Rodriguez v United Bronx Parents, Inc., 70 AD3d 492, 492 (1st Dept 2010). "[T]he party seeking disclosure has the burden to show willfulness by the nondisclosing party ... ." Sage Realty Corp. v Proskauer Rose L.L.P., 275 AD2d 11, 18 (1st Dept 2000).

BMW claims that it was not given an opportunity to inspect the 2008 BMW and now, with the vehicle no longer in plaintiff's possession, BMW is deprived of key evidence. As such, BMW claims that plaintiff spoliated the evidence by not still having the 2008 BMW in his possession at the time of BMW's request for inspection. BMW also argues that sanctions for spoliation may be appropriate where even a negligent loss of evidence has occurred. Squitieri v City of New York, 248 AD2d 201, 203 (1st Dept 1998). It continues that, since plaintiff was aware that the vehicle needed to be inspected, plaintiff should have notified BMW that he intended to return the vehicle.

BMW's claims are without merit. In the present case, the complaint was served on BMW in December 2008. Plaintiff's lease was set to expire in November 2009 as plaintiff testified at his deposition. BMW was given almost a year to request an inspection of the vehicle, which it did not do. BMW did not make a formal request to inspect plaintiff's vehicle until April 2010. The compliance conference order also dictated that plaintiff's vehicle was to be inspected within 30 days of plaintiff's deposition. BMW made no request to inspect the vehicle within 30 days of this deposition. It is not plaintiff's responsibility to contact BMW with respect to BMW's discovery requests or to assist BMW with its litigation strategies. Plaintiff returned the vehicle when the lease was set to expire. While plaintiff had agreed to provide the vehicle for inspection, BMW made its request too late. Therefore, plaintiff did not engage in any spoliation of evidence, either willfully or negligently. As such, BMW's motion to dismiss the complaint is denied. Since the evidence is not spoliated, the court also denies BMW's request to have the plaintiff precluded from using it at trial.

BMW also argues that, by not being able to inspect the vehicle, BMW is prejudiced in its ability to defend against the breach of contract claims and the Lemon Law violations. However, the court has already addressed the spoliation issue and found that the plaintiff did not spoliate any evidence, and it is BMW's own negligence which resulted in BMW's failure to inspect the vehicle.

Additionally, the Court of Appeals has held, with respect to the Lemon Law, that the consumer is not obligated to leave the vehicle in disrepair pending a trial in order to preserve his rights under the Lemon Law. DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 663 (2006). The consumer is not required to establish that the vehicle defect continued to exist at the hearing date. Id. at 662.

Applying the case above to the facts at hand, plaintiff is not required to prove that the defect in his car still exists at the time of the hearing. As such, the present condition of the car, or the condition of the car in April 2010 after BMW's inspection request, is irrelevant. The instant record indicates that the maintenance records and repair orders are all available to BMW, as well as plaintiff's deposition. Presumably, as the Court of Appeals had foreseen, even if plaintiff's vehicle was inspected, it would not be in the same condition as it was prior to the repairs, and BMW would have to rely on the work orders to determine what was initially wrong with the car. Accordingly, BMW is not "denied a fair opportunity" to rebut the Lemon Law [*4]claim. O'Toole Affirmation, ¶ 16.

II. JURY TRIAL:

BMW argues that plaintiff should not be entitled to a jury trial since he seeks equitable relief and money damages which arise from the same alleged wrong act. BMW cites to Zimmer-Masiello, Inc. v Zimmer, Inc. (164 AD2d 845, 846 [1st Dept 1990]), which states that "[w]hen, as here, the complaint either joins legal and equitable causes of action arising out of the same alleged wrong or seeks both legal and equitable relief, there is no right to a jury trial."

In response to BMW's motion, plaintiff has withdrawn his request for a jury trial in this matter.

III. COSTS:

Although both parties believe they are entitled to costs associated with this motion, the court declines to award costs to either party.

ORDERED that the motion to dismiss the complaint pursuant to CPLR 3126 for an order precluding plaintiff from relying on the evidence, for spoliation of evidence, brought by defendants BMW of North America, LLC and BMW of Manhattan, Inc., is denied; and it is further

ORDERED that plaintiff's request for a jury trial is withdrawn; and it is further

ORDERED that neither party is entitled to the costs of this motion.; and it is further

ORDERED that parties shall appear for trial before J.H.O. Ira Gammerman, Supreme Court, New York County, Part 40, 60 Centre Street, Room 242, New York, on Monday, November 8, 2010 at 10:00 a.m.; and it is further

ORDERED that counsel for defendant shall serve a copy of this order with notice of entry within twenty (20) days of entry on counsel for plaintiff.

Dated:October 6, 2010ENTER:

_________________________________

Carol Robinson Edmead,J.S.C.