| Hall v Elrac, Inc. |
| 2010 NY Slip Op 08864 [79 AD3d 427] |
| December 2, 2010 |
| Appellate Division, First Department |
| Jawaun Craig Hall, Appellant, v Elrac, Inc., Doing Business asEnterprise Rent A Car, Respondent, et al., Defendants. |
—[*1] DeSimone, Aviles, Shorter & Oxamendi, LLP, New York (Benjamin A. Shatzky of counsel), forrespondent.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about October 9, 2009,which denied plaintiff's motion to strike defendant Elrac's answer, or alternatively, to order that a"spoliation inference charge" be given or to preclude defendant Elrac from defending against theallegation of negligence, unanimously affirmed, without costs.
We find that the IAS court properly considered the affidavit of defendant Elrac's senior accountmanager in the damage unit in concluding that defendant's disposal of the vehicle in question was notdone in bad faith. Initially, plaintiff's claim that the affidavit was not in admissible form because it wassigned outside New York State but notarized by a New York notary, without providing a certificate ofconformity as required by CPLR 2309 (c) and Real Property Law § 299-a is unpreserved (see Matapos Tech. Ltd. v Compania Andina deComercio Ltda, 68 AD3d 672, 673 [2009]; P.T. Bank Cent. Asia v Chinese Am.Bank, 229 AD2d 224, 229 [1997]). In any event, as long as the oath is duly given, authenticationof the oath giver's authority can be secured later, and given nunc pro tunc effect if necessary(Matapos Tech. Ltd., 68 AD3d at 673).
The affidavit was based on the affiant's personal knowledge and his review of the documents,including wholesale purchase order/bill of sale and the check received by defendant in payment for thewrecked vehicle, sold as salvage, which established the date of transfer. This is not a summaryjudgment motion, where the movant's evidence must be in admissible form, and even a summaryjudgment motion affords some flexibility to the party opposing the motion (see Friends of Animals vAssociated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]).
Absent proof that the destruction of the vehicle was willful, contumacious or in bad faith, the courtproperly declined to impose the drastic sanction of striking defendant's answer and, instead, deferredthe issue of the appropriate sanction for spoliation of evidence to trial (see Christian v City of NewYork, 269 AD2d 135, 137[*2][2000]). Concur—Tom,J.P., Friedman, DeGrasse, Freedman and Manzanet-Daniels, JJ.