Opinion
16745 Index No. 21623/18E Case No. 2022–01104
11-29-2022
Shannon CLARKE, Plaintiff–Respondent, v. Alexander POVELLA, et al., Defendants–Appellants.
Lewis Brisbois Bisgaard & Smith, LLP, New York (Dean L. Pillarella of counsel), for appellant. Law Offices of Michael S. Lamonsoff, PLLC, New York (Jason Lesnevec of counsel), for respondent.
Lewis Brisbois Bisgaard & Smith, LLP, New York (Dean L. Pillarella of counsel), for appellant.
Law Offices of Michael S. Lamonsoff, PLLC, New York (Jason Lesnevec of counsel), for respondent.
Acosta, P.J., Kern, Singh, Scarpulla, Pitt, JJ.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about March 8, 2022, which denied defendants’ motion for spoliation sanctions for plaintiff's failure to produce journal entries, unanimously modified, on the law and in the exercise of discretion, to grant the motion to the extent of imposing an adverse inference charge at trial, and otherwise affirmed, without costs.
Contrary to the motion court's finding, plaintiff's journal entries were not beyond the scope of disclosure in this case where plaintiff is asserting claims for emotional and psychological injuries. Although the journal contained private information, plaintiff did not move for a protective order, and defendant was not required to make any special threshold burden to obtain relevant discovery (see Forman v. Henkin, 30 N.Y.3d 656, 665, 70 N.Y.S.3d 157, 93 N.E.3d 882 [2018] ; Patterson v. Turner Constr. Co., 88 A.D.3d 617, 618, 931 N.Y.S.2d 311 [1st Dept. 2011] ).
Spoliation sanctions are warranted under the circumstances here. Plaintiff was under an obligation to preserve her journal once defendants made a demand for it at her deposition (see Maiorano v. JPMorgan Chase & Co., 124 A.D.3d 536, 998 N.Y.S.2d 629 [1st Dept. 2015] ; Strong v. City of New York, 112 A.D.3d 15, 22, 973 N.Y.S.2d 152 [1st Dept. 2013] ), and her subsequent failure to take steps to preserve it, along with her vague accounts of when and how she had lost it, supports a finding that she was grossly negligent, giving rise to an inference that the journal would have been relevant to her claim for emotional and psychological damages (see VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33, 45, 939 N.Y.S.2d 321 [1st Dept. 2012] ). Nevertheless, the extreme sanctions of dismissal of the complaint or preclusion are unwarranted, in view of the fact that plaintiff had provided authorizations for records of her psychological treatment and testified extensively to her emotional and psychological state (see Rossi v. Doka USA, Ltd., 181 A.D.3d 523, 525–526, 121 N.Y.S.3d 41 [1st Dept. 2020] ; Melcher v. Apollo Med. Fund Mgmt. L.L.C., 105 A.D.3d 15, 24, 959 N.Y.S.2d 133 [1st Dept. 2013] ). Rather, we find that an adverse inference charge at trial is sufficient and appropriate (see Gogos v. Modell's Sporting Goods, Inc., 87 A.D.3d 248, 255, 926 N.Y.S.2d 53 [1st Dept. 2011] ; Minaya v. Duane Reade Intl., Inc., 66 A.D.3d 402, 403, 886 N.Y.S.2d 154 [1st Dept. 2009] ).