Opinion
2013-05-1
Ivy SAMAROO, respondent-appellant, v. BOGOPA SERVICE CORP., et al., appellants-respondents.
Kim, Patterson & Sciarrino, P.C. (Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y. [Jonathan A. Dachs], of counsel), for appellants-respondents. Omrani & Taub, P.C., New York, N.Y. (Jay L.T. Breakstone and Alex A. Omrani of counsel), for respondent-appellant.
Kim, Patterson & Sciarrino, P.C. (Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y. [Jonathan A. Dachs], of counsel), for appellants-respondents. Omrani & Taub, P.C., New York, N.Y. (Jay L.T. Breakstone and Alex A. Omrani of counsel), for respondent-appellant.
, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Saitta, J.), dated November 17, 2011, as granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to impose a sanction upon them for spoliation of evidence to the extent of striking their ninth and tenth affirmative defenses and precluding them from offering testimony at trial to contradict the plaintiff's claim of adequate notice, and the plaintiff cross-appeals, as limited by her brief, from so much of the same order as denied that branch of her motion which was pursuant to CPLR 3126 to impose a sanction upon the defendants for spoliation of evidence to the extent of striking the defendants' entire answer and deferred determination, until the trial of the action, of that branch of her motion which was to direct that an adverse inference charge be given at trial.
ORDERED that the cross appeal from so much of the order as deferred determination, until the trial of the action, of that branch of the plaintiff's motion which was to direct that an adverse inference charge be given at trial is dismissed, without costs or disbursements; and it is further,
ORDERED that the order is affirmed insofar as reviewed, without costs or disbursements.
“Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126” ( Holland v. W.M. Realty Mgt., Inc., 64 A.D.3d 627, 629, 883 N.Y.S.2d 555). “The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence” ( Lentz v. Nic's Gym, Inc., 90 A.D.3d 618, 618, 933 N.Y.S.2d 875;see Ortega v. City of New York, 9 N.Y.3d 69, 76, 845 N.Y.S.2d 773, 876 N.E.2d 1189). It may, under appropriate circumstances, impose a sanction “even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided [the party] was on notice that the evidence might be needed for future litigation” ( DiDomenico v. C & S Aeromatik Supplies, 252 A.D.2d 41, 53, 682 N.Y.S.2d 452;see Lentz v. Nic's Gym, Inc., 90 A.D.3d at 618, 933 N.Y.S.2d 875;Iannucci v. Rose, 8 A.D.3d 437, 438, 778 N.Y.S.2d 525).
The nature and severity of the sanction depends upon a number of factors, including, but not limited to, the knowledge and intent of the spoliator, the existence of proof of an explanation for the loss of the evidence, and the degree of prejudice to the opposing party ( see 1A N.Y. PJI3d 1:77, comment; 6–3126 Weinstein–Korn–Miller, N.Y. Civ. Prac. CPLR ¶ 3126.05). This Court will substitute its judgment for that of the Supreme Court only if its discretion was exercised improvidently ( see Holland v. W.M. Realty Mgt., Inc., 64 A.D.3d at 629, 883 N.Y.S.2d 555).
Here, contrary to the plaintiff's contention on her cross appeal, the Supreme Court providently exercised its discretion in denying that branch of her motion which was pursuant to CPLR 3126 to impose a sanction upon the defendants for spoliation of evidence to the extent of striking the defendants' entire answer ( see Coleman v. Putnam Hosp. Ctr., 74 A.D.3d 1009, 1011, 903 N.Y.S.2d 502; Fossing v. Townsend Manor Inn, Inc., 72 A.D.3d 884, 885–886, 900 N.Y.S.2d 101;Gotto v. Eusebe–Carter, 69 A.D.3d 566, 568, 892 N.Y.S.2d 191;Weber v. Harley–Davidson Motor Co., Inc., 58 A.D.3d 719, 722, 871 N.Y.S.2d 698;Lamb v. Maloney, 46 A.D.3d 857, 858, 850 N.Y.S.2d 138). Under the circumstances of this case, however, a lesser sanction was warranted and, contrary to the defendants' contention on their appeal, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was pursuant to CPLR 3126 to impose a sanction upon them for spoliation of evidence to the extent of striking their ninth and tenth affirmative defenses and precluding them from offering testimony at trial to contradict the plaintiff's claim of adequate notice ( see Aloyts v. 601 Tenant's Corp., 84 A.D.3d 1287, 1288, 924 N.Y.S.2d 516;Fossing v. Townsend Manor Inn, Inc., 72 A.D.3d at 886, 900 N.Y.S.2d 101;Weber v. Harley–Davidson Motor Co., Inc., 58 A.D.3d at 722–723, 871 N.Y.S.2d 698;Mylonas v. Town of Brookhaven, 305 A.D.2d 561, 563, 759 N.Y.S.2d 752).
A party may not appeal as of right from so much of an order as merely defers disposition of a motion until trial ( see Anesthesia Assoc. of Mount Kisco, LLP v. Northern Westchester Hosp. Ctr., 44 A.D.3d 975, 976, 844 N.Y.S.2d 446;Beharry v. Guzman, 33 A.D.3d 741, 742, 822 N.Y.S.2d 612;Kaplan v. Rosiello, 16 A.D.3d 626, 626–627, 792 N.Y.S.2d 523). Accordingly, the cross appeal from so much of the order as deferred determination, until the trial of the action, of that branch of the plaintiff's motion which was to direct that an adverse inference charge be given at trial must be dismissed, as leave to cross-appeal from that portion of the order has not been obtained ( see Anesthesia Assoc. of Mount Kisco, LLP v. Northern Westchester Hosp. Ctr., 44 A.D.3d at 976, 844 N.Y.S.2d 446;Beharry v. Guzman, 33 A.D.3d at 742, 822 N.Y.S.2d 612;Kaplan v. Rosiello, 16 A.D.3d at 626–627, 792 N.Y.S.2d 523), and we decline to grant leave.