SIMMONS v. PIERCE (2007)

 Plaintiff commenced this action to recover damages for injuries he sustained when the motor vehicle he was driving collided with a vehicle owned by defendant Gloria J. Pierce and operated by defendant Loralyn M. Pierce.   Supreme Court did not abuse its discretion in denying the motion of defendants for leave to amend their answer to assert as an affirmative defense that the accident was unavoidable due to brake failure.   The motion was made after plaintiffs had filed the note of issue and more than two years after they commenced the action, yet defendants offered no excuse for their delay in making the motion (see Sewkarran v. DeBellis, 11 A.D.3d 445, 782 N.Y.S.2d 758;  Manufacturers & Traders Trust Co. v. Reliance Ins. Co., 8 A.D.3d 1000, 778 N.Y.S.2d 600;  Oil Heat Inst. of Long Is. Ins. Trust v. RMTS Assoc., LLC, 4 A.D.3d 290, 293, 772 N.Y.S.2d 313;  cf. Blake v. Wieczorek, 305 A.D.2d 989, 990, 758 N.Y.S.2d 447).   In addition, the court properly denied the motion as a spoliation sanction.   According to defendants, their automotive repair shop discarded the allegedly defective brake line.   Defendants should have ensured that the brake line was preserved, however, because it was a “crucial piece of evidence” with respect to the potential affirmative defense of brake failure (Amaris v. Sharp Elecs. Corp., 304 A.D.2d 457, 758 N.Y.S.2d 637 lv. denied 1 N.Y.3d 507, 776 N.Y.S.2d 539, 808 N.E.2d 859;  see Cummings v. Central Tractor Farm & Country, 281 A.D.2d 792, 793, 722 N.Y.S.2d 285, lv. dismissed 96 N.Y.2d 896, 730 N.Y.S.2d 792, 756 N.E.2d 80;  see generally Standard Fire Ins. Co. v. Federal Pac. Elec. Co., 14 A.D.3d 213, 217-220, 786 N.Y.S.2d 41).   The availability of defendants' photographs of the brake line and the affidavits of defendants' expert witnesses “could not adequately substitute for the [plaintiff's] own experts' inspection of the key piece of evidence in the case” (Thornhill v. A.B. Volvo, 304 A.D.2d 651, 652, 757 N.Y.S.2d 598).   Finally, we further conclude that the court properly denied defendants' motion for summary judgment dismissing the complaint, inasmuch as there are triable issues of fact on the record before us (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM: