| Baldwin v Gerard Ave., LLC |
| 2009 NY Slip Op 00120 [58 AD3d 484] |
| January 15, 2009 |
| Appellate Division, First Department |
| Charles Baldwin, Respondent, v Gerard Avenue, LLC, etal., Defendants, and Austin Brothers, Inc., Appellant. |
—[*1] Bader, Yakaitis & Nonnenmacher, LLP, New York (John J. Nonnenmacher of counsel), forrespondent.
Orders, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered March 28,2008, which precluded defendant Austin Brothers from contesting the existence of certain filesconsidered material, directed a spoliation charge at trial with respect thereto, and precludedAustin from contesting the efficacy of repairs to stairs where the accident took place and fromoffering the testimony of its project manager at trial, unanimously affirmed, with costs.
Austin has offered no excuse for repeated noncompliance with the court's disclosure orders,conduct that was dilatory and "ultimately contumacious" (Henry Rosenfeld, Inc. v Bower &Gardner, 161 AD2d 374, 374 [1990]). All Austin needed to do, in order to comply with thecourt's July 16, 2007 discovery order, was to contact its former landlord and simply ask what hadbeen done with the records. During deposition, Austin admitted that those records may havebeen sent to its storage facility in New Jersey, yet no effort was made to contact and inquire ofthat facility.
A party seeking a sanction such as preclusion or dismissal (CPLR 3126) is required todemonstrate that "a litigant, intentionally or negligently, dispose[d] of crucial items of evidence. . . in [connection with] an accident before the adversary ha[d] an opportunity toinspect them" (Kirkland v New York City Hous. Auth., 236 AD2d 170, 173 [1997]), thusdepriving the party seeking the sanction of the means for proving his claim (see Kirschen v Marino, 16 AD3d555, 556 [2005]). Necessary to this burden is a showing of prejudice. Plaintiff has made therequisite showing, as these records were crucial to his action. While Austin correctly argues thatplaintiff has most of the records through pretrial discovery, the most important data—thename of the employee who made the repairs and any reports as to how they may have beenmade—remain missing.
Although Austin's conduct was sufficiently dilatory and contumacious to warrant a CPLR3126 sanction, the court, instead of striking the answer, issued a more lenient sanction, [*2]precluding Austin from contesting the existence of the missing fileand the fact that repairs were made, and from offering the testimony of the project manager. Theorder was appropriately tailored to restore balance to the matter (see Balaskonis v HRH Constr. Corp., 1AD3d 120, 121 [2003]). Austin was not precluded from offering any evidence as to thecondition of the stairway at the time of the accident, nor was it absolutely precluded fromoffering the project manager's testimony. Instead, the possibility of such testimony was heldopen to "further order of the court." Austin was thus precluded only from using plaintiff's lack ofevidence to its own advantage (see Jackson v City of New York, 185 AD2d 768, 770[1992]).
The order directing a spoliation charge at trial was appropriate, given plaintiff's October 11,2005 letter that clearly put Austin on notice of the claim for personal injuries.Concur—Tom, J.P., Gonzalez, Buckley, Sweeny and Catterson, JJ.