| Lentz v Nic's Gym, Inc. |
| 2011 NY Slip Op 08910 [90 AD3d 618] |
| December 6, 2011 |
| Appellate Division, Second Department |
| Dawn Marie Lentz, Respondent, v Nic's Gym,Incorporated, Appellant. |
—[*1] Bennett, Giuliano, McDonnell & Perrone, LLP, New York, N.Y. (Nicholas P. Giuliano andErika M. Achtziger of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Suffolk County (Baisley, Jr., J.), entered July 6, 2010, which granted theplaintiff's motion pursuant to CPLR 3126 to impose a sanction upon it for spoliation of evidenceto the extent of directing that an adverse inference charge be given at trial and that the plaintiff bereimbursed for the costs of an October 2008 site inspection conducted by the plaintiff's expert.
Ordered that the order is affirmed, with costs.
The Supreme Court has broad discretion in determining what, if any, sanction should beimposed for spoliation of evidence (seeIannucci v Rose, 8 AD3d 437, 438 [2004]). "It may, under appropriate circumstances,impose a sanction 'even if the destruction occurred through negligence rather than wilfulness, andeven if the evidence was destroyed before the spoliator became a party, provided [the spoliator]was on notice that the evidence might be needed for future litigation' " (id. at 438,quoting DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, 53 [1998]; seeFavish v Tepler, 294 AD2d 396 [2002]).
Here, given the defendant's failure to produce the physical evidence in question, the SupremeCourt providently exercised its discretion in determining that an adverse inference charge and areimbursement of the costs of an October 2008 site inspection by the plaintiff's expert wereappropriate sanctions (see Yechieli vGlissen Chem. Co., Inc., 40 AD3d 988, 989 [2007]; Molinari v Smith, 39 AD3d 607, 608 [2007]; Ifraimov v Phoenix Indus. Gas, 4AD3d 332, 334 [2004]; see also DeLos Santos v Polanco, 21 AD3d 397, 397-398 [2005]). Rivera, J.P., Dickerson, Eng andRoman, JJ., concur.