| Laskin v Friedman |
| 2011 NY Slip Op 08909 [90 AD3d 617] |
| December 6, 2011 |
| Appellate Division, Second Department |
| Amy Laskin, Appellant, v Loretta Friedman et al.,Respondents. |
—[*1] Grogan & Souto, P.C., Goshen, N.Y. (Edward P. Souto of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Westchester County (Giacomo, J.), dated September 15, 2010, which deniedher motion to strike the defendants' answer pursuant to CPLR 3126 (3) for failure to comply withdiscovery demands and based on the spoliation of evidence.
Ordered that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying that branch of theplaintiff's motion which was pursuant to CPLR 3126 (3) to strike the defendants' answer forfailure to comply with discovery demands. "[T]he drastic remedy of striking an answer isinappropriate absent a clear showing that the failure to comply with discovery demands is willful,contumacious, or in bad faith" (Jenkinsv Proto Prop. Servs., LLC, 54 AD3d 726, 726-727 [2008] [internal quotation marksomitted]; see Denoyelles vGallagher, 40 AD3d 1027, 1027 [2007]). Here, the plaintiff failed to demonstrate thatthe defendants' action in discarding the subject porch swing was the product of willful,contumacious, or bad faith conduct (see Jenkins v Proto Prop. Servs., LLC, 54 AD3d at727; Denoyelles v Gallagher, 40 AD3d at 1027).
Further, the Supreme Court providently exercised its discretion in denying that branch of theplaintiff's motion which was to strike the defendants' answer on the ground of spoliation of theporch swing after being on notice that such evidence might be necessary for future litigation(see Jenkins v Proto Prop. Servs., LLC, 54 AD3d at 727; Barnes v Paulin, 52 AD3d 754,755 [2008]; Denoyelles v Gallagher, 40 AD3d at 1027). The absence of the porch swingdid not leave the plaintiff "prejudicially bereft" of a means of proving her claim (Jenkins vProto Prop. Servs., LLC, 54 AD3d at 727; see Barnes v Paulin, 52 AD3d at 755;Denoyelles v Gallagher, 40 AD3d at 1027; Dennis v City of New York, 18 AD3d 599 [2005]; cf.Velasquez v Brocorp., Inc., 283 AD2d 423 [2001]; Yi Min Ren v ProfessionalSteam-Cleaning, 271 AD2d 602, 602-603 [2000]). Mastro, A.P.J., Chambers, Austin andMiller, JJ., concur.