| Jenkins v Proto Prop. Servs., LLC |
| 2008 NY Slip Op 06803 [54 AD3d 726] |
| September 9, 2008 |
| Appellate Division, Second Department |
| Teresa Jenkins, Appellant, v Proto Property Services, LLC,et al., Respondents. |
—[*1] Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina and Andrea Alonso ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Kings County (Silverman, J.), dated July10, 2007, as denied those branches of her motion which were pursuant to CPLR 3126 to strikethe defendants' answer or to impose sanctions for the defendants' spoliation of evidence.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in denying that branch of theplaintiff's motion which was pursuant to CPLR 3126 to strike the defendants' answer since "thedrastic remedy of striking an answer is inappropriate absent a clear showing that the failure tocomply with discovery demands is willful, contumacious, or in bad faith" (Harris v City ofNew York, 211 AD2d 663, 664 [1995]; see Pascarelli v City of New York, 16 AD3d 472 [2005]). Here, theplaintiff failed to demonstrate that the defendants' delay in producing the subject surveillancetape was the product of willful and contumacious conduct (see Pascarelli v City of NewYork, 16 AD3d at 473; Vogel v Benwil Indus., 267 AD2d 232 [1999]).
The Supreme Court also providently exercised its discretion in denying that branch of theplaintiff's motion which was to impose sanctions for the defendants' spoliation of evidence sincethe plaintiff failed to establish that the defendants failed to preserve crucial evidence after beingplaced on notice that such evidence might be needed for future litigation (see Denoyelles vGallagher, 40 [*2]AD3d 1027 [2007]; Lovell v United Skates of Am., Inc., 28AD3d 721 [2006]; DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41 [1998]).The striking of the pleading was not warranted in this case since the alleged spoliation did notleave the plaintiff "prejudicially bereft" of the means of prosecuting her action against thedefendants (see Canaan v CostcoWholesale Membership, Inc., 49 AD3d 583, 584 [2008]; Denoyelles vGallagher, 40 AD3d at 1027; DiDomenico v C & S Aeromatik Supplies, 252 AD2dat 53; New York Cent. Mut. Fire Ins. Co. v Turnerson's Elec., 280 AD2d 652, 653[2001]).
Contrary to the plaintiff's further contention, her moving papers were insufficient to showthat the surveillance tape that was produced by the defendants had been altered or tampered withby the defendants (see Cameron vNissan 112 Sales Corp., 10 AD3d 591 [2004]). Prudenti, P.J., Ritter, Florio andMcCarthy, JJ., concur.