| Kugel v City of New York |
| 2009 NY Slip Op 01521 [60 AD3d 403] |
| March 3, 2009 |
| Appellate Division, First Department |
| Donald Kugel, Respondent, v City of New York et al.,Defendants, and A. Jetta Towing, Appellant. |
—[*1] DeBerardine & DeBerardine, Brooklyn (Roger B. DeBerardine and Elaine A. DeBerardineof counsel), for respondent.
Order, Supreme Court, New York County (Karen S. Smith, J.), entered June 25, 2008,which, to the extent appealed from, granted plaintiff's cross motion to strike defendant's answerfor spoliation of evidence and award judgment on liability, unanimously reversed, on the law,without costs, the cross motion denied and the answer reinstated.
While a party's pleading may be struck as a sanction for the intentional destruction of keyevidence (see Amaris v Sharp Elecs. Corp., 304 AD2d 457 [2003], lv denied 1NY3d 507 [2004]), the documents destroyed by defendant, allegedly because its presidentbelieved the corporation had been dissolved, did not constitute key evidence warranting such aharsh sanction. Where the destroyed evidence is not crucial to the proof of the plaintiff's case, ashere, a lesser sanction for spoliation is appropriate (see Metropolitan N.Y. Coordinating Council on Jewish Poverty v FGPBush Term., 1 AD3d 168 [2003]; Tommy Hilfiger, USA v CommonwealthTrucking, 300 AD2d 58, 60 [2002]). As we have said, "[a]lthough some lesser sanction. . . appears to be appropriate, that is a matter best left to the discretion of the trialcourt and should be made on the basis of the record before it at the time" (Quinn v City Univ. of N.Y., 43 AD3d679, 680 [2007]). Furthermore, the record does not establish that defendant's failure tocomply [*2]with discovery demands was willful, contumaciousor in bad faith (see Mangual v NewYork City Tr. Auth., 48 AD3d 212 [2008]). Concur—Mazzarelli, J.P., Gonzalez,Sweeny, McGuire and DeGrasse, JJ.