LOUIS FRASER PLAINTIFF APPELLANT v. DAVID CORNELIUS MICHAL CORNELIUS DANA PERRIGO AND KAREN PERRIGO DEFENDANTS RESPONDENTS APPEAL NO (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal from the order insofar as it denied plaintiff's motion dated October 21, 2024 is unanimously dismissed, and the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking to recover damages for personal injuries that he sustained in a motor vehicle accident. The accident occurred when the vehicle operated by plaintiff collided with a horse on State Route 305. The horse, owned by defendant Michal Cornelius, had wandered onto Route 305 through a fence located along property owned by David Cornelius (defendant) and property owned by defendants Dana Perrigo and Karen Perrigo (collectively, Perrigo defendants).

In appeal No. 1, plaintiff appeals from that part of an order that denied plaintiff's motion to compel a second examination before trial of defendant. Plaintiff thereafter attended defendant's examination before trial by the Perrigo defendants wherein plaintiff was permitted to ask defendant a number of questions. Defendant's attorney, however, directed defendant to not answer several certified questions. In appeal No. 2, plaintiff appeals from an order that, inter alia, denied plaintiff's motion seeking to compel a further examination before trial of defendant to answer the certified questions from defendant's examination before trial by the Perrigo defendants, and denied plaintiff's motion seeking, among other things, to sanction defendant for spoliation in connection with destruction or removal of the fence, and, pursuant to CPLR 3211 (b), to dismiss the affirmative defenses of defendant and the Perrigo defendants that plaintiff's culpable conduct or comparative negligence contributed to the accident. We affirm in both appeals.

We reject plaintiff's contention in appeal No. 1 that Supreme Court erred when it denied plaintiff's motion for another examination before trial of defendant inasmuch as defendant's understanding of his obligations as a landowner is not material or necessary in the prosecution of plaintiff's action (see Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [2000]) because “ ‘[t]he question of whether a member or group of society owes a duty of care to reasonably avoid injury to another is ․ a question of law for the courts’ ” (Printup v Beckwith, 237 AD3d 1588, 1589 [4th Dept 2025]; see generally Hastings v Sauve, 21 NY3d 122, 125-126 [2013]).

In appeal No. 2, we reject plaintiff's contention that the court erred in denying his request for sanctions for spoliation of evidence in connection with removal of the fence. “Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126” (Helm v Sung-Hoon Yang, 169 AD3d 1458, 1458 [4th Dept 2019] [internal quotation marks omitted]). “Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence ․ It may, under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided [the party] was on notice that the evidence might be needed for future litigation” (Mahiques v County of Niagara, 137 AD3d 1649, 1650-1651 [4th Dept 2016] [internal quotation marks omitted]; see Bill’s Feed Serv., LLC v Adams, 132 AD3d 1400, 1401 [4th Dept 2015]). As the moving party, plaintiff had the burden of establishing that: (1) the alleged spoliator was obligated to preserve the evidence “at the time of its destruction”; (2) it “was destroyed with a culpable state of mind”; and (3) it “was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense” (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547 [2015] [internal quotation marks omitted]; see Burke v Queen of Heaven R.C. Elementary Sch., 151 AD3d 1608, 1608-1609 [4th Dept 2017]). Here, sanctions were not warranted against defendant inasmuch as he had no involvement in destroying or removing the fence (see Bacon v Shults Mgt. Group, Inc., 233 AD3d 1481, 1484 [4th Dept 2024]; see generally Estate of Smalley v Harley-Davidson Motor Co. Group LLC, 170 AD3d 1549, 1550 [4th Dept 2019]) and plaintiff failed to establish that the fence was destroyed or removed after the obligation to preserve the fence arose (see American Recycling & Mfg. Co., Inc. v Kemp, 165 AD3d 1604, 1605 [4th Dept 2018]).

We further reject plaintiff's contention in appeal No. 2 that the court erred in denying that part of plaintiff's motion seeking to dismiss the affirmative defenses of defendant and the Perrigo defendants that plaintiff's culpable conduct or comparative negligence contributed to the accident. “Pursuant to CPLR 3211 (b), a plaintiff may move to dismiss a defense on the ground that it has no merit” (Stopani v Allegany Co-op Ins. Co., 83 AD3d 1446, 1446 [4th Dept 2011]). When reviewing a motion to dismiss an affirmative defense, “all of [the] defendant's allegations must be deemed to be true and [the] defendant is entitled to all reasonable inferences to be drawn from the submitted proof” (Grunder v Recckio, 138 AD2d 923, 923 [4th Dept 1988]). As the movant, plaintiff had the burden of establishing that the affirmative defenses of defendant and the Perrigo defendants are without merit as a matter of law (see Santilli v Allstate Ins. Co., 19 AD3d 1031, 1032 [4th Dept 2005]). Here, plaintiff failed to meet his burden inasmuch as there is evidence in the record providing support for the conclusion that plaintiff's conduct contributed to the accident and thus plaintiff failed to establish that the affirmative defenses are without merit as a matter of law and that part of the motion was properly denied (see Connelly v Warner, 248 AD2d 941, 943 [4th Dept 1998]; see generally Catalano v Heiden Val. Farms, 158 AD3d 1200, 1202 [4th Dept 2018]).

Finally, to the extent plaintiff appeals from that part of the order in appeal No. 2 that denied his motion, dated October 21, 2024, seeking to compel defendant to respond to certified questions from an examination before trial, no appeal as of right lies from an order determining an application to review rulings made at an examination before trial (see Braverman v Bendiner & Schlesinger, Inc., 85 AD3d 1074, 1074 [2d Dept 2011]; Roggow v Walker, 303 AD2d 1003, 1003-1004 [4th Dept 2003]) and we decline to treat the notice of appeal as an application for leave to appeal under CPLR 5701 (c) with respect to that issue inasmuch as there is nothing in the record that would warrant the granting of leave to appeal on our own motion (see Milligan v Bifulco, 153 AD3d 1624, 1626 [4th Dept 2017]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court