The following items were considered in the review of the following motion for summary judgment.

PapersNumbered

Notice of Motion and Affidavits Annexed1

Memorandum of Law in Support2

Affirmation in Opposition3

Affirmation in Reply4

ExhibitsAttached to Papers

Upon the foregoing cited papers, the Decision and Order on this Motion is as follows:

The defendants move for summary judgment dismissing the plaintiffs' complaint on the merits with prejudice. The motion is granted.

This is a products liabililty action to recover for personal injuries allegedly sustained by [*2]the plaintiff, Denise Affronte, due to an alleged unspecified defect in the vehicle's supplemental restraint system (SRS), commonly known as the air bag system, which spontaneously deployed. The vehicle, a 2002 Toyota Corolla, was originally manufactured and sold by Toyota Motor Sales, U.S.A., Inc. ("Toyota") to a dealer, Gateway Toyota, ("Gateway"), on or about August 20, 2001. Gateway sold the new vehicle to the plaintiffs on or about September 25, 2001.

The plaintiff, Denise Affronte, alleges that on June 7, 2009 while she was driving her 2002 Toyota Corolla, the front air bag spontaneously deployed causing her to strike a parked car. At the time of the incident, the plaintiffs owned the subject vehicle for nearly 8 years and had driven the vehicle for more than 122,000 miles. Joseph Affronte, her husband, testified that after the accident, the vehicle was towed from the scene to a parking spot on the street outside of Richie's Auto Shop of Staten Island, where he stated that he took "the pictures over there for the case."^[FN1] Paul Reilly, Denise Affronte's brother-in-law, testified that he removed the electronic control unit ("ECU") from the vehicle shortly after the accident. During his deposition, Reilly testified as follows:

Q.Do you have any formal training in mechanics?

A.Formal training? No. Backyard mechanic ever since I was 17. I fixed my own cars, my car, my daughter's car, my son's car. Minor stuff, you know.

Mr. Reilly testified further:

Q.Now, as I understand it, at some point in time, you went and looked at the car and did some things with the car; is that correct?

A.Well, I — she told me that they needed the air bag module, I think that's what it's called. So I called a friend of mine, I asked him where it was. He says it's simple. He said it's bolted to the floor just underneath the radio.

He said it has two bolts, I believe, a simple time to get it out, just take two bolts and unplug the wire and drag out.

Most of my— I do most of the repairs on my car with his tutelage, you know.^[FN3]

The testimony reveals that within a couple of days of the accident, the police informed Joseph Affronte that the vehicle could not be kept on the street. Rather than preserving the vehicle, the Affrontes had the subject vehicle towed to a junkyard where it was never seen again. Plaintiffs' attorney states that the destruction of the 2002 Toyota Corolla occurred prior to the the law firm's representation of the plaintiffs which began on June 11, 2009. Consequently, the plaintiffs destroyed their vehicle before retaining their own counsel to prosecute this products liability claim.

Plaintiffs' attorney references a U.S. Department of Transportation National Highway Traffic Safety Administration letter dated January 30, 2013 referencing "Airbag Inadvertent Deployment," however this recall relates to 2003-2004 Toyota Corolla and Corolla Matrix vehicles, as well as 2003-2004 Pontiac Vibe vehicles, but not to the 2002 Toyota Corolla.

The plaintiffs' complaint alleges several causes of action against the defendants. The first is for breach of both the express warranty and the implied warranties of merchantability and fitness for a particular purpose; the second cause of action is for strict liability tort and strict product liability; the third cause of action is for improper manufacture and negligent manufacture; and the fourth and final cause of action is brought by Joseph Affronte for loss of services of Denise Affronte.

The defendants move for summary judgment to dismiss the complaint with prejudice due to the plaintiffs' destruction of crucial evidence, and their failure to set forth a prima facie case.

According to the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned within the terms of CPLR 3216. However, the sanction of striking a pleading is appropriate only when the missing evidence deprives the moving party of the ability to establish his or her claim or defense. The Supreme Court has broad discretion in determining what, if any, sanctions should be imposed for the spoliation of evidence.^[FN6] [*5]

The defendants submited the expert affidavits of Mark Jakstis and Michael Klima. Mark Jakstis earned a Bachelor of Science degree in Engineering with a specialty in Mechanics and Materials, from Southern Illinois University. Jakstis is a Design and Technical Analysis Manager for the defendant, Toyota based out of Torrance, California. He has been employed as an engineer in the automotive industry since 1982; and as an automotive engineer for Toyota since 1985. Michael Klima earned a Bachelor of Science in Engineering degree in Mechanical Engineering and is a registered Professional Mechanical Engineer in the states of California and Michigan.

Mr. Jakstis states that the ECU in the 2002 Toyota Corlla is responsible for monitoring the status and deployment of the vehicle's air bags. He states further that, "[i]f there was a problem within the SRS air bag system the ECU would retain the vehicle's historical diagnostic information." Here, on their own initiative, the plaintiffs had the untrained Mr. Reilly remove the ECU based upon the directions of an unnamed "friend." The photographs of the ECU submitted in connection with the motion show signs of physical damage. But the record is unclear as to whether this damage was caused by the accident, or the removal of the device by Mr. Reilly. The plaintiffs destroyed the vehicle before experts from either side had the opportunity to view the damage.

Mr. Jakstis states in his affidavit at paragraph 20 that:

If the vehicle had been preserved and had been made available, Toyota, or experts retained by Toyota, could have inspected the vehicle and obtained incontrovertible physical evidence of the following, in support of the defense of this case:

(a) physical evidence proving that crash deceleration significant enough to warrant air bag deployment occurred in this accident;

(b) physical evidence indicating the condition of the vehicle and SRS air bag system at the time of the incident;

(c) the SRS diagnostic system could have been checked to show it was operating properly and Toyota could verify whether or not any diagnostic codes, i.e. faults in the SRS system existed prior to air bag deployment;

(d) the four (4) air bag sensor could have been removed from the vehicle and tested to verify they were properly calibrated and operating as designed and could not deploy the air bags without a sufficient crash;

(e) the air bag ECU's unique part number to determine it was the correct part number for this vehicle and was the original module;

(f) verify the manufacturing dates to prove other units and components manufactured around the [*6]same time have no reported problems;

(g) verify that all SRS air bag system components were properly mounted and assembled within the vehicle, including verifying mounting hardware and wiring harnesses were the correct parts and not damaged;

(h) quality control data for the unique ECU that was in the Plaintiffs' vehicle;

(i) the quality control stamps on the ECU to prove the quality control was done during manufacturing and that the air bag system passed all quality control procedures;

(j) physical evidence indicating the use or non-use of the available seatbelt system;

(k) physical evidence of the interaction of the occupant with the SRS air bag;

(l) observe the FMVSS certification lable placed on the vehicle by the manufacturer.

Similarly, Michael E. Klima, P.E., avers at paragraphs 9 and 10 of his affidavit as follows:

9. In this case, because the plaintiffs have alleged a defect of improper deployment of the air bags (one of the components of the subject vehicle's occupant protection system) without associated impact, I would have inspected the entire vehicle and its occupant protection system in its immediate post-accident condition. These components would have been examined for evidence of failure, improper maintenance, abuse and misuse. In particular, I would have:

a. examined the entire vehicle and other vehicle components and subsystems to determine their performance in this accident;

b. examined the vehicle for the presence of broken or otherwise improper parts or vehicle repairs which might affect the performance of the vehicle and its occupant protection system;

c. looked for alterations to the vehicle since the time of its manufacture which might change the collision performance of the vehicle;

d. examined the components of the occupant protection system on the vehicle at the time of the accident to determine if those components were original equipment;

e. examine the components of the air bag SRS system to determine if those components were original equipment and if they were in proper working order;

f. examined the seat belt system for physical evidence that could determine if the driver's seat belt was being utilized at the time of the accident; [*7]

g. examined the steering wheel and knee bolsters to determine whether they were contacted by the occupant during the accident;

h. examined the structural components of the front end of the vehicle to measure the damage to help determine the speed and severity of the impact in the collision with the parked car.

10. Because the subject vehicle was salvaged and not available, I have been unable to inspect any portion of the subject vehicle. This has prevented me from performing the type of investigation I would have performed had the vehicle not been salvaged. This fact has placed me at an extreme disadvantage in determining the severity of the frontal impact and in assessing the performance of the restraint system in the subject event. Because the subject vehicle was not preserved, I am unable to definitively determine the condition of the vehicle, including major components of the vehicle's occupant protection system, at the time of the accident. Also, I cannot utilize physical evidence to prove that the components of the vehicle's occupant protection system were in proper operating condition, nor determine whether the components on the subject vehicle at the time of the accident were original Toyota components. I cannot accurately measure the vehicle deformation to determine the speed and severity of the impact with the parked car.

It is clear that in an automobile products liability case the key piece of evidence is the vehicle itself, and the parts alleged to be defective. The defendant correctly points out that when a products liability action arises out of an incident involving a single individual, there are two witnesses to the event: the plaintiff and the product. In Silvestri v. General Motors Corp., the United States Court of Appeals for the Fourth Circuit reviewed the decision the United States District Court for the District of Maryland that dismissed the plaintiff's complaint due to spoliation of evidence.^[FN7] In that case the plaintiff filed a law suit against General Motors alleging that the airbag in his landlady's Chevrolet automobile, which he was operating, failed to deploy when he was in a severe accident. While the plaintiff was incapacitated due to his injuries, his parents engaged the services of an attorney. Upon his recovery the plaintiff ratified his parents' selection of attorney. Thereafter, the attorney engaged the services of two accident reconstructionists to inspect the damaged vehicle. The experts examined the vehicle and concluded that the plaintiff had a cause of action and directed his attorney to notify General Motors of the plaintiff's potential claim; and to preserve the vehicle. It was later determined that the experts failed to properly photograph and take appropriate measurements of the physical damage to the vehicle. Moreover, plaintiff's attorney did not follow the direction of the experts to secure the vehicle. The vehicle was subsequently transferred to the insurance company that then repaired it, and in turn sold it. When the repaired vehicle was found while General Motors was able to retrieve certain data from the sensing and diagnostic module, it was unable to perform a crush analysis based on the measurements taken by plaintiff's experts. In determining that General Motors had been prejudiced by the destruction of the automobile the United States Fourth Circuit found that its destruction: [*8]

. . . denied General Motors to the only evidence from which it could develop its defenses adequately. First, by not having access to the vehicle, General Motors could not develop a "crush" model to prove that the airbag properly failed to deploy. In order to establish this model, General Motors needed crush measurements taken at several places on the automobile. These measurements would reveal not only the speed at impact, but also the direction of forces imposed on the car. This information would lead to an ability to determine whether the airbag device acted as designed and therefore was critical to the central issue in the case.^[FN8]

The court went on to conclude that, ". . . not only was the evidence lost to General Motors, but the evidence that was preserved was incomplete and indefinite. To require General Motors to rely on the evidence collected by [plaintiff's] experts in lieu of what it could have collected would result in irreparable prejudice."^[FN9]

Here, the expert affidavits submitted by the defendants demonstrate they were prejudiced by the plaintiffs' failure to preserve the subject vehicle. Moreover, the plaintiffs' expert submits no testimony in his affidavit rebutting the defense's position that the subject vehicle is necessary to fully understand whether the SRS air bag unit malfunctioned.

In Dean v. Campagna, the New York Supreme Court Appellate Division, Second Department modified a trial court's order striking a plaintiff's complaint for spoliation.^[FN10] In that case the plaintiff was allegedly injured when his three wheel motor vehicle crashed into the rear of a parked tractor trailer. Four months after the accident a professional engineer photographed and inspected the vehicle on behalf of the plaintiff.^[FN11] Subsequently, the engineer generated a report that the three wheel vehicle had defects that included the design and manufacture of the accelerator pedal.^[FN12] After the commencement of the action, a discovery order required the plaintiff to make the three wheel motor vehicle available for inspection by the defendant. The plaintiff in that action failed to comply with the order and the defendants moved pursuant to CPLR 3126 to strike the complaint. In opposition to the motion it was discovered that the subject vehicle had been disassembled and that certain parts, including the accelerator peddle were missing. The trial court precluded the plaintiff from offering expert testimony concerning the inspection of the vehicle.

The Appellate Division, Second Department modified the trial court's order by permitting [*9]the plaintiff's expert to testify with respect to the design defect claim, but not as to the manufacturing defect claim. Moreover, the Appellate Division, Second Department assessed a sanction in the amount of $5,000 due to the plaintiff's substantial delay in notifying the Supreme Court and the defendant that the subject vehicle had been destroyed; and upon the notification the failure to offer a reasonable excuse.

Here, the striking of plaintiff's complaint is an appropriate sanction. The plaintiffs, on their own accord, destroyed the single most important piece of evidence in an automobile products liability action—the automobile. Moreover, the vehicle was destroyed even before the plaintiffs' expert could examined it. While the plaintiffs may have had the vehicle destroyed without the intention of depriving the defense with an opportunity to examine it; their negligent action has rendered the defendants incapable of establishing a defense.^[FN13] Consequently, the defendants are severely prejudiced and the plaintiffs' complaint is stricken, due to their destruction of the 2002 Toyota Corolla prior to the retention of counsel and the commencement of this case. The court does not address the defendants' other grounds for dismissal set forth in the summary judgment motion.

Accordingly, it is hereby:

ORDERED, that the defendants' motion is granted to the extent that the plaintiffs' complaint is struck and dismissed with prejudice due to the destruction of the subject automobile; and it is further

ORDERED, that the Clerk shall enter judgment accordingly; and it is further

ORDERED, that the defendant shall settle judgment.

ENTER,

DATED: November 4, 2013

Joseph J. Maltese

Justice of the Supreme Court