Toussie v. Allstate Insurance Company et al

Filing 179

ORDER. The Court-ordered subpoena dated 10/23/2017 continues in effect. Christies Fine Art and Storage Services is ORDERED to make the storage space at 100 Imlay Street, Brooklyn, NY 11231, available and to permit the inspection, from day to d ay as scheduled by the parties, until the inspection has been completed or until further order of this Court. Furthermore, the plaintiffs, Robert Toussie and Laura Toussie, as well as their agents, employees, or any other person acting on their beha lf, are ENJOINED from removing any boxes or property from the aforementioned storage units absent permission from this Court. This prohibition shall remain in place until the earlier of January 15, 2018 or the completion of the inspection of the premises by the defendant. The parties shall file a joint status report by 12/04/2017.Ordered by Magistrate Judge Cheryl L. Pollak on 11/6/2017. (Blase, Brendan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------- X
ROBERT TOUSSIE,
Plaintiff,
ORDER
14 CV 2705 (FB) (CLP)

-againstALLSTATE INSURANCE CO. et al.,
Defendants.
---------------------------------------------------------- X
ROBERT TOUSSIE and LAURA TOUSSIE,
Plaintiffs,
-against-

15 CV 5235 (ARR) (CLP)

ALLSTATE INSURANCE CO.,
Defendant.
---------------------------------------------------------- X
POLLAK, United States Magistrate Judge:
On April 30, 2014, plaintiff Robert Toussie commenced an action against Allstate
Insurance Company (“Allstate” or the “defendant”), Alan Rodriguez Insurance Agency, Inc.,
George J. Schlott, Inc., Alan Rodriguez, and George Schlott (collectively, “defendants”),
alleging that the defendants had improperly adjusted and mishandled his claims for damages
caused to his property, located at 290 Exeter Street, Brooklyn, New York (the “Property”), as a
result of Hurricane Sandy, in violation of an insurance contract between the parties (the “Flood
Case”).
On September 10, 2015, in a related action (the “Theft Case”), plaintiffs Robert Toussie
and Laura Toussie alleged that Allstate improperly adjusted and mishandled plaintiffs’ claims for
losses incurred by plaintiffs when thieves allegedly vandalized their Property in the days
following Hurricane Sandy.

The Court has previously addressed discovery in this matter several times, and assumes
familiarity with its earlier opinions. See, e.g., Toussie v. Allstate Ins. Co., No. 14 CV 2705,
2017 WL 4773374 (E.D.N.Y. Oct. 20, 2017). On November 3, 2017, the Court held a telephone
conference to discuss the status of discovery in these related matters. (See Minute Entry, Nov. 3,
2017). The Court’s rulings from the conference are set forth below.

DISCUSSION
A. Inspection of Christie’s Storage Unit
On October 23, 2017, the Court issued a so-ordered subpoena directed to Christie’s Fine
Art Storage Services (“Christie’s”) to allow the inspection of the contents of several storage units
the plaintiffs maintain there. (See Order, Oct. 23, 2017, ECF No. 113). The inspection began on
October 30, 2017. Over the course of one day, the parties were only able to inspect eight boxes
out of several dozen.
1. Duration of the Inspection
At the conference, the parties explained that Christie’s has advised them that, despite this
Court’s Order to allow the inspection and the parties’ compensating Christie’s for use of its
resources and personnel, Christie’s will only allow the parties one more day in which to
complete the inspection. The Court therefore clarifies that Christie’s is ORDERED to make the
storage space available and to permit the inspection to continue from day to day as scheduled by
the parties, until the inspection has been completed or until further order of this Court.

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2. Protocol for the Inspection
The Court, like the parties, is concerned about the enormous amount of time the
inspection may take if it continues to proceed at its current pace. The parties are therefore
ordered to explore options to expedite the inspection, including, if appropriate, hiring another
professional to unbox and handle items, as well as another videographer. Defense counsel also
has agreed to prioritize the inspection of boxes that match items for which the Toussies presented
claims under the policies at issue in this litigation, as well as boxes the contents of which counsel
is unable to discern.
3. Plaintiffs Presence at the Inspection
Plaintiffs’ counsel explained that Mr. Toussie is subject to residency requirements in the
State of Florida and will be away from New York for six months or more. She therefore
requested that the Court halt the inspection for the time during which Mr. Toussie is away from
New York. Rule 34 of the Federal Rules of Civil Procedure contains no requirement that the
party attend any inspection. See Fed. R. Civ. P. 34. As the Court has repeatedly admonished the
plaintiffs, they chose to file the instant lawsuits, and in doing so voluntarily assumed the
obligations attendant to litigation. Such obligations include participating in discovery in a
manner that will “secure the . . . speedy determination of [this] action.” Fed. R. Civ. P. 1. As
explained at length in the Court’s previous opinions, the plaintiffs have delayed this litigation
unnecessarily over the past three years. While the Court has discretion to limit discovery under
Federal Rule of Civil Procedure 26, it would be inappropriate to exercise such discretion in these
circumstances. The inspection shall continue as ordered, even in the absence of Mr. Toussie.

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B. Removal of Boxes
Beginning on November 12, 2016, only shortly after defendants announced their
intention to seek inspection of the storage unit, plaintiffs allegedly removed approximately 60
boxes from the storage unit over the course of eight days. Plaintiffs’ counsel represented to the
Court that those boxes contained children’s toys and clothing. The Court agrees with defense
counsel that it would seem implausible to store dozens of boxes of children’s toys at a fine art
warehouse. As the Court explained at the telephone conference, defense counsel may serve
interrogatories and requests for production regarding the missing boxes to determine where the
boxes were and where they were taken. If plaintiffs violated their duty to preserve evidence for
reasonably anticipated litigation, defendants are free to bring a motion seeking sanctions for
spoliation.
C. Continued Preservation Order
The Court previously concluded that, in light of the significant concerns regarding
spoliation by plaintiffs, and considering the possibility of irreparable harm to the defendants if
evidence were to be lost, it was appropriate to enter a preservation order. Toussie v. Allstate Ins.
Co., 2017 WL 4773374, at *4-5. Given that the inspection has not concluded and that the
concerns regarding spoliation have not abated, the Court concludes it is appropriate to continue
the preservation order.
The Court therefore Orders that plaintiffs, Robert Toussie and Laura Toussie, as well as
their agents, employees, or any other person acting on their behalf, are enjoined from removing
any boxes or property from the storage units located at Christie’s Fine Art Storage Services, 100
Imlay Street, Brooklyn, NY 11231, absent permission from this Court. This prohibition shall

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remain in place until the earlier of January 15,2018 or the conclusion ofthe inspection ofthe
premises.

CONCLUSION

For the reasons set forth above, the Court confirms that the Court-ordered subpoena dated

October 23,2017 continues in effect and Christie's Fine Art and Storage Services is ORDERED

to make the storage space at 100 Imlay Street, Brooklyn, NY 11231, available and to permit the

inspection, from day to day as scheduled by the parties, until the inspection has been completed
or until further order of this Court.

Furthermore, the plaintiffs, Robert Toussie and Laura Toussie, as well as their agents,

employees, or any other person acting on their behalf, are ENJOINED from removing any boxes
or property from the storage units rented located at Christie's Fine Art Storage Services, 100

Imlay Street, Brooklyn, NY 11231 absent permission from this Court. This prohibition shall
remain in place until the earlier of January 15,2018 or the inspection ofthe premises by the
defendant.

The Clerk is directed to send copies of this Order to the parties either electronically
through the Electronic Case Filing(ECF)system or by mail.
SO ORDERED.

Dated: Brooklyn, New York
November 6,2017

/s/ Cheryl Pollak
CheryV%. Pollak

Unit^^tates Magistrate Judge
Easrcm District of New York