After Verizon Communications sued Consolidated Edison over a damaged copper cable that Verizon later turned to scrap metal, a judge tossed the lawsuit on spoliation grounds.
Acting Manhattan Supreme Court Justice Nancy Bannon granted Con Ed’s dismissal motion, saying Verizon’s discarded, approximately 80-year-old cable was the case’s “singular most important piece of evidence,” and its absence left Con Ed “‘prejudicially bereft’ of the means of presenting their defense.”
The suit, Verizon New York v. Consolidated Edison, 101981/07, arose from a March 2004 malfunction for an underground telecommunications cable at West 26th Street and Sixth Avenue. Verizon told Con Ed the problem was being caused by stray voltage from the utility company’s equipment.
A Con Ed employee, Richard Chintalin, went to the location the day after the report. He tested two Con Ed manholes and one Verizon manhole at the intersection but found no signs of stray voltage.
When going into Verizon’s manhole, Chintalin did not recall seeing any damage to the Verizon cables or other equipment. He told Verizon employees at the scene that the site was safe, and the employees started working.
A deposed Verizon employee present for Chintalin’s evaluation said the cable was “put in a scrap heap” when the repair work was finished and no further testing of the cable was done.
After the cable was destroyed, Verizon sued Con Ed in 2007, claiming negligence and seeking an estimated $120,000 judgment, plus interest and legal fees.
Con Ed said it learned the cable was destroyed after being served. It denied responsibility, saying any damage to the cable was due to Verizon’s own negligence. The cable, installed in 1930, failed because of its age and condition or some reason other than stray voltage from its own equipment, Con Ed claimed.
When seeking dismissal, Con Ed said that without physical inspection of the cable, no cause determination could be made. It also complained that Verizon failed to comply with other discovery de- mands.
In her de- cision, Bannon said courts have “broad discretion” to impose appropriate relief when considering the impact of lost evidence. But she said dismissal is only justified where spoliation prevents parties from reviewing evidence that is key to their case or leaves them “prejudicially bereft” of a way to show their case.
“This is not a case where a lesser sanction would suffice,” she said.
Bannon said Con Ed did not need to submit an expert opinion because “logic dictate[d]” the cable was the “ central piece of physical evidence, which the defendant has a right to inspect.”
The judge said Verizon didn’t help its case by filing suit after the cable was scrapped. There only needed to be a “reasonable anticipation of litigation,” and that happened when Verizon first reported to Con Ed that stray voltage purportedly caused the failure.
Besides, Bannon observed, “given the nature of their respective businesses,” the two parties were “often adversaries in similar actions.”
She pointed to a 2008 Appellate Division, First Department, decision on a spoliation claim in a suit between the parties. There, the First Department ordered Verizon to excavate buried lines that Verizon claimed were damaged by Con Ed. Excavation was not possible here, Bannon said.
Verizon insisted Con Ed could mount its defense based on photographs and records of the incident. Bannon said Verizon was being “disingenuous” with that argument, noting the four black and white photographs were “indecipherable.” Con Ed employee Chintalin could not identify them in a 2009 deposition, so he was unlikely to identify them at a trial, she said.
And though Verizon referenced documents, not all had been turned over to Con Ed—”notwithstanding some twelve court orders,” Bannon noted.
David E. Hoffberg of Pillinger Miller Tarallo in Elmsford appeared for Verizon. He declined to comment.
William Tietjen, a senior attorney at Con Ed, appeared for the utility.
“We are pleased with Justice Bannon’s decision,” a company spokesman said.