Opinion
2013-05-9
ORTHOTEC, LLC, Plaintiff–Respondent, v. HEALTHPOINTCAPITAL, LLC, et al., Defendants–Appellants, Scient'x, S.A., Defendant.
DLA Piper LLP (US), New York (Colleen M. Carey of counsel), for appellants. Browne George Ross LLP, Los Angeles, CA (Peter W. Ross of the bar of the State of California, admitted pro hac vice of counsel), for respondent.
DLA Piper LLP (US), New York (Colleen M. Carey of counsel), for appellants. Browne George Ross LLP, Los Angeles, CA (Peter W. Ross of the bar of the State of California, admitted pro hac vice of counsel), for respondent.
Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered October 2, 2012, which denied defendants' motion for spoliation sanctions, unanimously affirmed, without costs.
The motion court properly denied defendants' motion to strike the cause of action for intentional interference with economic advantage as a sanction for spoliation since the spoliation did not deprive defendants of their ability to defend against the claim ( see Suazo v. Linden Plaza Assoc., L.P., 102 A.D.3d 570, 958 N.Y.S.2d 389 [1st Dept. 2013];see also Melcher v. Apollo Med. Fund Mgt. L.L.C., 105 A.D.3d 15, 959 N.Y.S.2d 133 [1st Dept. 2013] ). With respect to any other spoliation sanction, the court properly found that the “zone of the preservation duty” encompasses only documents drafted subsequent to 2008, when plaintiff began seriously contemplating initiating this litigation ( see VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33, 939 N.Y.S.2d 321 [1st Dept. 2012] ), and that the evidence of plaintiff's preservation and collection of any such documents is inadequate to show the degree of its culpability ( see Melcher, 105 A.D.3d at 23, 959 N.Y.S.2d 133).