Opinion
656256/2016
08-12-2019
Ellen COHEN, Jeffrey Cohen, Plaintiff, v. 118 EAST 60TH OWNERS INC. Matthew Adam Properties, Inc., Ira Meister, Omar Altahawi, Kenneth Barish, Scott Curtis, Lawrence Friedland, Daniel Finklestein, Sarah Kaplan, Joel Karp, Leonard Kreppel, Peter Matsoukus, Defendant.
Plaintiffs: Braverman Greenspun, P.C. 110 East 42nd Street, Fl 17 New York, NY 10017 By: Maria Boboris, Esq., Robert Johnathan Braverman, Esq. Defendants: Boyd Richards Parker & Colonnelli, P.L. 1500 Broadway Suite 505, New York, NY 10036 By: Gary S. Erlich, Esq., Russell Jordan Edwards, Esq.
Plaintiffs:
Braverman Greenspun, P.C.
110 East 42nd Street, Fl 17 New York, NY 10017
By: Maria Boboris, Esq., Robert Johnathan Braverman, Esq.
Defendants:
Boyd Richards Parker & Colonnelli, P.L.
1500 Broadway Suite 505,
New York, NY 10036
By: Gary S. Erlich, Esq., Russell Jordan Edwards, Esq.
Robert R. Reed, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54 ere read on this motion for DISCOVERY
Upon the foregoing documents, it is ordered that this motion is denied.
Plaintiffs commenced this action after allegedly being denied the permission necessary to combine their apartment with an adjacent unit, despite having been initially approved and then having the approval rescinded by defendants.
Plaintiffs now move for an order, pursuant to CPLR 3126, striking defendants' answer due to spoliation of relevant evidence, setting the matter for an immediate inquest, and for attorney's fees for preparing and arguing the instant motion. Plaintiffs allege that defendant failed to preserve the co-op's alteration files relating to the combination of other apartments, as well as all other alteration projects. Defendants oppose, arguing that the bulk of the documents sought had been destroyed pursuant to a seven-year document retention policy, and that the remaining documents were destroyed by a flood.
"Under the common law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence" (McDonnell v. Sandaro Realty, Inc. , 165 AD3d 1094, 1095; see Morales v. City of New York , 130 AD3d 792, 793 ). "A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" ( Golan v. North Shore-Long Is. Jewish Health Sys. Inc. , 147 AD3d 1031, 1032 ). The requisite culpable state of mind can be demonstrated through intentional or willful conduct, gross negligence or ordinary negligence ( Voom HD Holdings LLC v. EchoStar Satellite L.L.C. , 93 AD3d 33 ).
In the matter at bar, plaintiffs allege that they made their first discovery demands on or about March 8, 2017, and that defendants failed to timely produce the requested documents. On or about September 14, 2017, and again on February 15, 2018, the court issued conference orders directing defendants to produce all outstanding documents, and defendants failed to comply with each of those orders. On or about June 7, 2018, defendants informed plaintiffs that documents they had still maintained that were responsive to plaintiffs' demands had been placed in a box and delivered to the office of Ira Meister (managing agent for defendant Co-op 118 East 60th Owners, Inc.), but that such documents had subsequently been destroyed by a flood in Meister's office. Defendants advised, moreover, that the bulk of documents sought by plaintiffs had already, prior to the receipt of any demands or preservation notice, been destroyed in due course in accordance with defendants' established seven-year document retention policy. On the papers before it at this juncture, this court is unwilling to conclude that these circumstances present a case for spoliation sanctions.
Plaintiffs have failed to proffer sufficient evidence sufficient to show that defendants' failure to respond to discovery demands and the subsequent destruction of the sought-after documents constitute intentional or willful conduct. These circumstances do not in the court's views rise to the level of gross negligence. Nor have plaintiffs alleged facts that demonstrate specific negligence on the part of defendants. The most recent documents here were placed in a box and kept in an office. At this time, there is no reason for the court to doubt that there was a flood, as defendants have attached to their responsive papers photographs showing what appears to be boxes in water on the floor of what is purported to be Meister's office. Defendants' explanation that other documents were previously destroyed pursuant to an established retention policy, moreover, is rational. Furthermore, while the court fully expects parties to comply with court conference orders, there was at the time documents were lost as a result of the flood no specific order to compel or any order specifically detailing sanctions if parties failed to comply.
Accordingly, it is
ORDERED that plaintiffs' motion to strike defendants' answer due to spoliation is denied — but such denial is expressly without prejudice to any relief plaintiffs may seek from the assigned trial judge with regard to such missing evidence, whether in limine or after the conclusion of testimony at trial; and it is further
ORDERED that counsel are directed to appear for a status conference in Part 43, Room 412, located at 60 Centre Street, New York, New York, on September 26, 2019 at 9:30am.
This constitutes the decision and order of the court.