| Scarano v Bribitzer |
| 2008 NY Slip Op 09378 [56 AD3d 750] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Edward Scarano, Appellant, v Glen Bribitzer et al.,Respondents. |
—[*1] John P. Humphreys, New York, N.Y. (Eric P. Tosca and Scott M. Karpel of counsel), forrespondent Glen Bribitzer. Buckley & Fudge P.A., New York, N.Y. (Jill E. Sodafsky of counsel), for respondentMercedes Benz Credit Corporation.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Richmond County (McMahon, J.), dated January 8, 2007, which granted thedefendants' separate motions to dismiss the complaint insofar as asserted against each of them onthe ground of spoliation of evidence to the extent of precluding him from offering evidence attrial with respect to any head injuries allegedly sustained as a result of the accident.
Ordered that the order is modified, on the law, the facts, and in exercise of discretion, bydeleting the provisions thereof granting the defendants' separate motions to the extent ofprecluding the plaintiff from offering evidence at trial with respect to any head injuries allegedlysustained as a result of the accident and substituting therefor provisions granting the motions tothe extent of directing the trial court to issue a negative inference charge against the plaintiff withrespect to the subject motorcycle helmet and shield; as so modified, the order is affirmed, withone bill of costs to the plaintiff.
The Supreme Court has broad discretion in determining sanctions for spoliation of evidence(see De Los Santos v Polanco, 21 AD3d 397 [2005]; Barahona v Trustees ofColumbia Univ. in City of N.Y., 16 [*2]AD3d 445, 446[2005]). To support a determination of sanctions pursuant to CPLR 3126, the moving party hasthe burden of demonstrating that the responsible party's actions were "willful and contumacious"or in bad faith (Denoyelles v Gallagher, 40 AD3d 1027, 1027 [2007]; see Jenkins vProto Prop. Servs., LLC, 54 AD3d 726 [2008]; Mylonas v Town of Brookhaven, 305AD2d 561, 562 [2003]; Foncette v LA Express, 295 AD2d 471 [2002]). Thecommon-law doctrine of spoliation allows for sanctions when a party negligently disposes ofevidence; however, the court must consider prejudice resulting from spoliation in determiningwhat type of sanction, if any, is warranted as a matter of fundamental fairness (see Dean vUsine Campagna, 44 AD3d 603, 605 [2007]; Iannucci v Rose, 8 AD3d 437, 438[2004]; Favish v Tepler, 294 AD2d 396, 397 [2002]).
Here, the Supreme Court improvidently exercised its discretion in imposing a sanction ofpreclusion, as the defendants failed to establish that the plaintiff disposed of the subjectmotorcycle helmet and shield intentionally or in bad faith, or that the loss of this evidence willleave them without a means to defend the action (see Cohen v Jordan Servs., Inc., 49AD3d 680, 681 [2008]; Kerman v Martin Friedman, C.P.A., P.C., 21 AD3d 997, 999[2005]; Lawson v Aspen Ford, Inc., 15 AD3d 628, 629-630 [2005]; Vaughn v City ofNew York, 201 AD2d 556, 558 [1994]). Under the circumstances, the court should haveimposed the less severe sanction of a negative inference charge (see Yechieli v GlissenChem. Co., Inc., 40 AD3d 988, 989 [2007]; Molinari v Smith, 39 AD3d 607, 608[2007]; Ifraimov v Phoenix Indus. Gas, 4 AD3d 332, 334 [2004]). Santucci, J.P.,Covello, Leventhal and Belen, JJ., concur.