"NOTICE OF MOTION"(NYSCEF Doc 23), dated and filed June 16, 2025, respectively, by James R. Finn, Esq. (Rivkin Radler LLP), counsel for defendant, Peter Friend Motorcycles LLC, d/b/a Empire Harley Davidson ("Empire"), seeking an Order "(1) pursuant to CPLR 3212, granting summary judgment and dismissing plaintiff's Complaint against defendant, EMPIRE; and/or (2) alternatively, pursuant to CPLR 3126 striking plaintiff's Complaint for spoliation of evidence and dismissing all causes of action asserted therein; and/or (3) alternatively, precluding plaintiff from offering any evidence due to his spoliation of evidence; and/or (4) alternatively, granting defendant a negative inference charge at trial due to plaintiff's spoliation of evidence;" is DENIED.

In this personal injury action, plaintiff alleges that, on or about August 10, 2019, defendant Peter Friend Motorcycles LLC, d/b/a Empire Harley Davidson's ("Empire") negligent repair of plaintiff's motorcycle caused the vehicle to catch fire during its operation, causing plaintiff to collide with another vehicle before throwing him from the motorcycle, whereby plaintiff suffered "road rash" and multiple lacerations to both arms. Defendant now moves for summary judgment, pursuant to CPLR 3212, dismissing plaintiff's complaint, or alternatively, seeking various remedies permitted under CPLR 3126 for plaintiff's alleged spoliation of evidence. Movant argues that the evidence shows that Empire did not install the aftermarket exhaust system determined to have been the likely origin of the fire that consumed plaintiff's motorcycle, requiring dismissal of the complaint; it also argues that the subsequent disposal of the subject vehicle has prevented defendant's expert from conducting an inspection, warranting sanctions against plaintiff for spoliation of evidence. Here, defendant's evidence fails to eliminate all material issues of triable fact, including whether defendant caused or created the defective condition, where defendant's expert's opinion that the baffles installed by defendant were not causally related to plaintiff's injuries was not rationally supported by that expert's stated reasoning. Defendant also fails to establish any prejudice imparted by the disposal of the motorcycle as would require the imposition of sanctions against plaintiff to preserve the elementary fairness of these proceedings.

Defendant contends that shortly after the accident plaintiff filed a property damage claim, the settlement of which involved the transfer of title to the motorcycle to Progressive Casualty [*2]Insurance Company ("Progressive"). In response to defendant's subpoena, Progressive disclosed that it had retained a third-party, North Eastern Technical Services, Inc. ("NETS") to inspect the motorcycle, whereby it was determined that an aftermarket straight-pipe exhaust system that had been installed prior to plaintiff's purchase of the motorcycle had generated sufficient heat to ignite combustibles in close proximity to the exhaust pipe, causing a fire that spread throughout the motorcycle. Progressive also notified plaintiff that its fire investigator, John Ferro, had determined that the fire had originated from the tail section of the motorcycle, near the rear wheel. Plaintiff's October 10, 2024, deposition transcript (NYSCEF Doc 31) established that plaintiff had purchased the motorcycle used approximately four months prior to the accident, and that plaintiff had never performed any maintenance or repairs on his own. Plaintiff testimony also states that his prior attorney never conducted an inspection of the motorcycle, and that it was ultimately auctioned off for scrap after it was transferred to Progressive. The November 7, 2024, deposition transcript of John Schiller, Parts and Services Director for defendant Empire (NYSCEF Doc 33) attests that plaintiff brought his motorcycle to be serviced by Empire on three occasions, in May, July and August of 2019, during which Empire variously installed baffles on the aftermarket muffler, a battery cover, and an intermittent crankshaft sensor, as well performed a 10,000-mile maintenance service. Finally, movant also submits the affirmation of its mechanical engineering expert, Anthony J. Lucernoni (NYSCEF Doc 24), who reviewed, inter alia, numerous photographs of damage sustained by plaintiff's motorcycle, service and maintenance records, deposition transcripts, as well as the police and investigative reports proceeding from the incident, and opined that Empire's installation of the baffles and intermittent crankshaft position sensor did not cause the fire that precipitated plaintiff's injuries.

In opposition, plaintiff argues, in pertinent part, that his deposition testimony indicates that the motorcycle had been running properly with no experience of overheating prior to June of 2019, at which time he brought the vehicle to Empire to request that they make it run more quietly. Subsequent to defendant's installation of baffles on the exhaust system, plaintiff began experiencing fuel supply issues causing the bike to stall and requiring towing to Empire for repair. Plaintiff's testimony states that following the final such repair, plaintiff retrieved the motorcycle from defendant following the replacement of the intermittent crank shaft position sensor, and that plaintiff observed flames emitting from both sides of the gas tank approximately ten minutes after plaintiff began riding it, causing him to be thrown from the vehicle. Plaintiff therefore posits that the doctrine of res ipsa loquitur is applicable in this action and should preclude summary judgment in favor of the defendant. In rebuttal of defendant's assertions as to spoliation, plaintiff argues he never regained possession of the motorcycle after the incident because Progressive retrieved the vehicle from the police lot, and that compensation for his claim was conditioned on the surrender of the motorcycle to his insurer. Furthermore, although plaintiff states that defendant's deposition witness, John Schiller, stated that he did not personally supervise the work performed on plaintiff's motorcycle, plaintiff highlights that Schiller admitted that he was present during Progressive's examination and inspection of the motorcycle and that defendant therefore suffered no prejudice in the disposal of the vehicle by its then-owner, Progressive. Plaintiff also points to defendant's testimony to demonstrate that Empire conducted work on the exhaust system, and that at the time of servicing, Empire had no cause to believe that the aftermarket exhausts were a safety risk. Additionally, plaintiff contends that the report issued by NETS indicated that the flames originated in the vicinity of the tailpipe, but did not indicate that cause of the hot surface alleged to have instigated combustion. Plaintiff also states [*3]that the expert affirmation of Anthony J. Lucernoni proffers an alternative theory of causation that contradicts the opinion of fire investigator John Ferro that plaintiff's motorcycle was running in a lean condition, but nonetheless eliminates the baffles installed on the exhaust system as the cause of the tailpipe overheating on the basis that the replaced muffler and baffles would not have affected the fuel to air ratio in the engine combustion chamber.

In reply, movant points out that plaintiff operated the subject motorcycle for over 420 miles following the May 2019 installation of the baffles, attenuating any possible causal relationship between that service and the August 2019 incident. Empire also contends that plaintiff proffers no admissible evidence sufficient to rebut defendant's prima facie case for dismissal of the complaint. Empire also insists that plaintiff cannot defeat summary judgment by setting forth a new theory of liability in its opposition papers that was never alleged in the complaint nor bill of particulars.

A. Summary Judgment

The proponent of a summary judgment motion has the burden of submitting evidence in admissible form demonstrating the absence of any triable issues of fact and establishing entitlement to judgment as a matter of law. Giuffrida v Citibank Corp., 100 NY2d 72 (2003); Alvarez v Prospect Hosp., 68 NY2d 320 (1986); Winegrad v New York University Medical Center, 64 NY2d 851 (1985). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. Winegrad, supra at 853. "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to rebut the movant's claims and establish that triable issues of fact exist. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the non-moving party and should not pass on issues of credibility. Dauman Displays, Inc. v. Masturzo, 168 AD2d 204, 205 (1990); also see Latif v. Eugene Smilovic Hous. Dev. Fund Co., 147 AD3d 507, 508 (1st Dept. 2017).

Upon review and an analysis of the statutory authority, case law, the submitted papers and the record, defendant has not carried his burden on summary judgment to show the absence of any triable issues of material fact. Here the submitted evidence shows that between May and August 2019, defendant performed various repair and maintenance services on plaintiff's motorcycle, including a 10,000-mile inspection, as well the installation of baffles on the aftermarket exhaust system, as well as a replacement battery cover and intermittent crankshaft sensor. Although the aftermarket exhaust system was already present at the time of Empire's servicing of the motorcycle defendant's technicians did not regard it as a safety concern, a sentiment reinforced by defendant deposition witness John Schiller, whose prior experience with similar exhaust setups did not suggest that the straight-pipes presented any notable safety risk (see NYSCEF Doc 33 at pp.15-16). The report tendered by Progressive's investigators, NETS and fire investigator John Ferro (NYSCEF Doc 30), indicated that the fire was likely caused by overheating of the aftermarket exhaust pipe resulting in a lean running condition as well as sufficient heat generation to ignite combustible materials in its vicinity. However, defendant's expert, Anthony Lucernoni, disagreed with NETS conclusion that a lean running condition was the underlying cause of the allegedly overheated exhaust pipe, and after reviewing the reports [*4]and photographs produced by Progressive's investigation he opined two-fold: (i) that the evidence does not show that the motorcycle was running in a lean condition since such a state would trigger corresponding error codes in the front and/or rear 02 cylinder sensor, which did not occur; and (ii) that the bafflers installed by Empire did not cause the exhaust to overheat because they would not have affected the air to fuel ratio in the engine combustion chamber, nor did the manual for the aftermarket parts specify particular "air or fueling requirements to avoid a lean or rich running condition" (see NYSCEF Doc 34 at pp.21-24). However, it does not then follow, as Lucernino opines, that the baffles installed by Empire could not have been culpable for the overheating tailpipe because they bore no relationship to the engine air to fuel ratio as pertains to a lean running condition, even though Lucernoni had hitherto concluded that a lean running condition did not exist. Such analysis is manifestly tautological and self-contradictory, and the Court therefore cannot rely on that opinion to establish the defendant's work on the motorcycle was not causally related to plaintiff's injuries. Established law directs the court to examine whether to "whether the expert's opinion sufficiently relates to existing data or is connected to existing data only by the ipse dixit of the expert." Guerra v. Ditta, 185 AD3d 667, 669 [2d Dept. 2020], quoting People v. Brooks, 31 NY3d 939, 941 [2018]; and see Parker v. Mobil Oil Corp., 7 NY3d 434, 447 [2006]; People v. Wesley, 83 NY2d 417, 430 [1994]). Because it is clear that defendant has not met its burden to demonstrate that no triable issues of material fact remain, it is precluded from obtaining summary judgment, regardless of the sufficiency of the opposing papers (Winegrad, supra at 853). Consequently, that branch of defendant's motion seeking summary judgment dismissing plaintiff's complaint is DENIED.

B. Spoliation Sanctions

Turning now to that branch of Empire's motion seeking sanctions for the spoliation of evidence, on a motion for spoliation sanctions the moving party must establish that (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a "culpable state of mind," which may include ordinary negligence; and (3) the destroyed evidence was relevant to the moving party's claim or defense. Duluc v. AC & L Food Corp., 119 AD3d 450, 451 (1st Dept. 2014). However, the striking of an answer is a drastic remedy, and is appropriate only where the moving party conclusively demonstrates that the non-disclosure was willful, contumacious or due to bad faith. Youwanes v. Steinbrech, 193 AD3d 492 (1st Dept. 2021). Where the evidence is determined to have been intentionally or willfully destroyed, the relevancy of the destroyed documents is presumed. Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d 543, 547—48 (2015). "Where a noticed party discards evidence without moving for a protective order, a negative inference may be drawn that the destruction was deliberate (i.e., "willful")." DiDomenico v. C & S Aeromatik Supplies, Inc., 252 AD2d 41, 52 (2d Dept. 1998) [internal quotations omitted]. On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed evidence was relevant to the party's claim or defense. Id. at 547-48. In deciding whether to impose sanctions, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness. Duluc v. AC & L Food Corp., supra at 451—52. However, where the spoliator's conduct does not clearly evince willfulness, even if the proffered excuse is less than compelling, there is a strong preference in our law that matters be decided on their [*5]merits. Youwanes v. Steinbrech, supra at 492.

Here, while it is apparent that the subject motorcycle constituted relevant evidence, because defendant has not established the evidence was willfully destroyed, and because Empire has not shown that it was prejudiced by Progressive disposal of the motorcycle, no spoliation sanctions are warranted. It is not disputed that plaintiff never recovered actual possession of the motorcycle subsequent to the incident, and that Progressive immediately retrieved the motorcycle from the police to conduct its investigation. However, defendant's witness John Schiller admitted that he personally attended NETS's and John Ferro's inspections of the motorcycle, and that he "looked over the vehicle with the investigator to try to figure out a cause," even though Empire did not hire its own expert to examine the evidence (see NYSCEF Doc 33 at pp.25-26; p.36). Movant also does not establish that it directed Progressive to retain the evidence for an additional inspection by Schiller or a hired expert, nor that any party had been placed on notice to continue to preserve the evidence until January 6, 2023 (NYSCEF Doc 27), over three years after the initial October 9, 2019, inspections attended by defendant. It is also clear that the results of that inspection were ultimately provided to Empire on subpoena, such that it has access to identical evidence as to the condition of the bike as is available to plaintiff, and that no party has obtained a substantive advantage by the destruction of the evidence. Therefore, because principles of elementary fairness do not justify the imposition of sanctions against plaintiff, and in light of the strong policy preference that matters be decided on their merits, defendant's motion for sanctions, pursuant to CPLR 3126, is DENIED.

The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by the parties was not addressed by the Court, it is hereby denied.

Accordingly, defendant Empire's motion is DENIED in its entirety, as stated herein.

Empire is directed to serve a copy of this decision and order with notice of entry, upon plaintiff within thirty (30) days of entry of this order, and to upload proof of service onto the NYSCEF system.

This constitutes the decision and order of this Court.