Lawrence v North Country Animal Control, 133 A.D.3d 932 [3rd Dept., 2015]
The question presented here is whether there is a path to relief from a conditional disclosure order where the direction to disclose is not objected to, but where the conditional penalty seems excessive. The answer from the Appellate Division is that there is no immediate avenue of relief. If the conditional order is not complied with, the penalty will become absolute, and the path to relief will be a motion to vacate the conditional order.
The plaintiffs here alleged that they had adopted a dog from the defendant animal shelter, that in doing so they relied on the defendants’ misrepresentations concerning the nature and history of the dog, that the dog had repeatedly attacked them, and that they had returned the dog to the defendants. The defendants had sent the dog to a rescue shelter in Pennsylvania. Plaintiffs wanted the dog produced for a behavioral examination, which would bear on the defendants’ knowledge of its vicious propensities. Supreme Court ordered the defendants to produce the dog, adding that if the dog were not produced, they would be precluded from offering evidence that they did not know that the dog was dangerous and vicious when they sold him to the plaintiffs, and any defense of lack of knowledge would be stricken from their answer. How the animal’s behavior, four years after the incidents complained of, would prove the what the defendants knew at the time, is not set forth in the opinion. Nevertheless, on appeal the defendants did not challenge the relevance of the examination, or challenge the direction to produce it. They limited their appeal to the severity of the conditional penalty.
Note the severity of the conditional sanction. The burden of proof on the issue of notice of vicious propensities at trial will be on the plaintiff. Striking any defense on this issue is tantamount to resolving the issue in the plaintiffs’ favor. In considering the appropriate penalty for what amounts to spoliation of evidence, the dispositive consideration is the extent to which the party demanding disclosure has been prejudiced. (Compare, Scordo v Costco Wholesale Corp., 77 AD3d 725 [2d Dept., 2010]; and Shayovich v 800 Ocean Parkway Apt. Corp., 77 AD3d 814 [2d Dept., 2010].) Can it really be said that the failure to produce the dog has prevented the plaintiffs from proving notice of vicious propensities? It certainly would seem that, should the defendants prove unable to retrieve the dog from the rescue shelter, they would have a legitimate argument that the sanctions in the conditional order are disproportionate to the prejudice caused.
The defendants’ appeal was limited to the sanctions in the conditional order. The Appellate Division held that the only avenue of redress will be a motion to vacate the order, supported by proof of a reasonable excuse for the failure to comply with the order and of a meritorious defense. Even if the excuse is insufficient, should the defendants be deprived of their opportunity to argue that the sanction is excessive? If the court below had determined that the failure to produce the dog was willful, and had decided to impose sanctions under CPLR 3126 absolutely instead of conditionally, the defendants would have been allowed to argue for a lesser sanction. Why should they lose that opportunity when the order imposing sanctions was conditional?