Messinger v. FCA US, LLC

Messinger v FCA US, LLC (2021 NY Slip Op 50717(U)) [*1] Messinger v FCA US, LLC 2021 NY Slip Op 50717(U) [72 Misc 3d 135(A)] Decided on July 23, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on July 23, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ 2018-1691 Q C Benjamin Messinger, Appellant, against FCA US, LLC, Respondent. Benjamin Messinger, appellant pro se. Rose Waldorf, PLLC (Mark W. Skanes of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered June 6, 2018. The order granted defendant's motion for summary judgment dismissing the complaint. ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is denied. On May 27, 2015, plaintiff commenced this action alleging "[d]amages caused to automobile," "[f]ailure to provide repairs," and "[f]ailure to return money for $17,796.81 with interest from 10/28/2014." Issue was joined and discovery ensued which established that, in May 2012, plaintiff purchased from a Chrysler dealer a used 2010 Chrysler Town & County vehicle, with about 40,000 miles on the odometer, for $14,995. Plaintiff testified at his deposition that, beginning in October of 2014, he experienced issues with the vehicle stalling and brought it to the dealership to remedy the problem. During the following six months, the dealership was unable to fix the car and promised plaintiff to reimburse him for rental car expenses. On July 2, 2015, plaintiff traded in the vehicle for a new one, purchased at a Nissan dealership, and received $10,000 for his Chrysler. On March 17, 2016, defendant moved to dismiss this action based on plaintiff's spoilation of the relevant evidence, or in the alternative, for summary judgment dismissing the complaint, arguing that the action is barred by the applicable breach of warranty four-year statute of limitations, that plaintiff cannot demonstrate the existence of a defect covered under the terms of [*2]the limited warranty, and that plaintiff cannot demonstrate damages. Plaintiff opposed the motion, submitting the dealer's notes regarding the repair of his vehicle, which included the "Customer Assistance Inquiry Record," which set forth plaintiff's complaints and contained defendant's employees' notations about reimbursing plaintiff for rental vehicles while his vehicle was being diagnosed and repaired. The records also revealed that defendant acknowledged that the five-year/100,000 mile powertrain warranty had not yet expired when plaintiff brought his vehicle in for repair. After plaintiff failed to appear for oral argument, defendant's motion was granted on default. Plaintiff moved to vacate its default, and its motion was denied. Plaintiff appealed the latter order, and this court reversed the order, granted plaintiff's motion and remitted the matter to the Civil Court for a new determination of defendant's motion (see Messinger v FCA US, LLC, 58 Misc 3d 159[A], 2018 NY Slip Op 50253[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). The Civil Court subsequently granted defendant's motion, stating that, based on spoliation, dismissal was appropriate since "plaintiff's sale of the vehicle deprives defendant of its ability to inspect the vehicle, thereby prejudicing its entire defense." The Civil Court further stated that the breach of warranty action was time barred by the applicable four-year statute of limitations set forth in UCC 2-725, since plaintiff commenced this action on May 27, 2015 and the car was delivered to the dealer on or before May 1, 2010. The Civil Court improvidently exercised its discretion in dismissing the compliant due to spoliation of evidence. In requesting sanctions for spoliation, defendant had the burden of demonstrating that plaintiff intentionally or negligently disposed of critical evidence, thereby fatally compromising defendant's ability to defend the action (see Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717 [2009]; Kirschen v Marino, 16 AD3d 555 [2005]). Dismissing an action for spoliation is usually reserved for instances of willful or contumacious conduct (see Dean v Usine Campagna, 44 AD3d 603 [2007]; De Los Santos v Polanco, 21 AD3d 397 [2005]). Dismissal of a complaint based on spoliation is too drastic a remedy where, as here, defendant is not entirely bereft of evidence tending to establish its defense (see Cohen Bros. Realty v Rosenberg Elec. Contrs., 265 AD2d 242 [1999]), as defendant is in possession of the repair records performed by its dealership during the six months prior to the commencement of this action. Furthermore, defendant does not dispute that the five-year/100,000 mile powertrain warranty had not expired when plaintiff brought his car in for repairs under the warranty. Moreover, the evidence revealed that although defendant performed repairs on plaintiff's vehicle, plaintiff informed defendant on numerous occasions that the car continued to stall. Thus, plaintiff raised a triable issue of fact as to whether defendant's repair was defective. Finally, plaintiff raised an issue of fact as to whether defendant breached the agreement to reimburse plaintiff for rental car costs. Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied. ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: July 23, 2021