| Samaroo v Bogopa Serv. Corp. |
| 2013 NY Slip Op 03075 [106 AD3d 713] |
| May 1, 2013 |
| Appellate Division, Second Department |
| Ivy Samaroo, Respondent-Appellant, v BogopaService Corp. et al., Appellants-Respondents. |
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Omrani & Taub, P.C., New York, N.Y. (Jay L.T. Breakstone and Alex A. Omrani ofcounsel), for respondent-appellant.
In an action to recover damages for personal injuries, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County(Saitta, J.), dated November 17, 2011, as granted that branch of the plaintiff's motionwhich was pursuant to CPLR 3126 to impose a sanction upon them for spoliation ofevidence to the extent of striking their ninth and tenth affirmative defenses andprecluding them from offering testimony at trial to contradict the plaintiff's claim ofadequate notice, and the plaintiff cross-appeals, as limited by her brief, from so much ofthe same order as denied that branch of her motion which was pursuant to CPLR 3126 toimpose a sanction upon the defendants for spoliation of evidence to the extent of strikingthe defendants' entire answer and deferred determination, until the trial of the action, ofthat branch of her motion which was to direct that an adverse inference charge be givenat trial.
Ordered that the cross appeal from so much of the order as deferred determination,until the trial of the action, of that branch of the plaintiff's motion which was to directthat an adverse inference charge be given at trial is dismissed, without costs ordisbursements; and it is further,
Ordered that the order is affirmed insofar as reviewed, without costs ordisbursements.
"Under the common-law doctrine of spoliation, when a party negligently loses orintentionally destroys key evidence, the responsible party may be sanctioned under CPLR3126" (Holland v W.M. RealtyMgt., Inc., 64 AD3d 627, 629 [2009]). "The Supreme Court has broaddiscretion in determining what, if any, sanction should be imposed for spoliation ofevidence" (Lentz v Nic's Gym,Inc., 90 AD3d 618, 618 [2011]; see Ortega v City of New York, 9 NY3d 69, 76 [2007]). Itmay, under appropriate circumstances, impose a sanction "even if the destructionoccurred through negligence rather than wilfulness, and even if the evidence wasdestroyed before the spoliator became a party, provided [the party] was on notice that theevidence might be needed for future litigation" (DiDomenico v C & S AeromatikSupplies, 252 AD2d 41, 53 [1998]; see Lentz v Nic's Gym, Inc., 90 AD3d at618; Iannucci v Rose, 8AD3d 437, 438 [2004]).
The nature and severity of the sanction depends upon a number of factors, including,but not limited to, the knowledge and intent of the spoliator, the existence of proof of anexplanation for the loss of the evidence, and the degree of prejudice to the opposingparty (see 1A NY PJI3d [*2]1:77, Comment;6-3126 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 3126.05). This Court willsubstitute its judgment for that of the Supreme Court only if its discretion was exercisedimprovidently (see Holland v W.M. Realty Mgt., Inc., 64 AD3d at 629).
Here, contrary to the plaintiff's contention on her cross appeal, the Supreme Courtprovidently exercised its discretion in denying that branch of her motion which waspursuant to CPLR 3126 to impose a sanction upon the defendants for spoliation ofevidence to the extent of striking the defendants' entire answer (see Coleman v Putnam Hosp.Ctr., 74 AD3d 1009, 1011 [2010]; Fossing v Townsend Manor Inn, Inc., 72 AD3d 884,885-886 [2010]; Gotto vEusebe-Carter, 69 AD3d 566, 568 [2010]; Weber v Harley-Davidson Motor Co., Inc., 58 AD3d 719,722 [2009]; Lamb vMaloney, 46 AD3d 857, 858 [2007]). Under the circumstances of this case,however, a lesser sanction was warranted and, contrary to the defendants' contention ontheir appeal, the Supreme Court providently exercised its discretion in granting thatbranch of the plaintiff's motion which was pursuant to CPLR 3126 to impose a sanctionupon them for spoliation of evidence to the extent of striking their ninth and tenthaffirmative defenses and precluding them from offering testimony at trial to contradictthe plaintiff's claim of adequate notice (see Aloyts v 601 Tenant's Corp., 84 AD3d 1287, 1288[2011]; Fossing v Townsend Manor Inn, Inc., 72 AD3d at 886; Weber vHarley-Davidson Motor Co., Inc., 58 AD3d at 722-723; Mylonas v Town ofBrookhaven, 305 AD2d 561, 563 [2003]).
A party may not appeal as of right from so much of an order as merely defersdisposition of a motion until trial (see Anesthesia Assoc. of Mount Kisco, LLP v NorthernWestchester Hosp. Ctr., 44 AD3d 975, 976 [2007]; Beharry v Guzman, 33 AD3d741, 742 [2006]; Kaplan vRosiello, 16 AD3d 626, 626-627 [2005]). Accordingly, the cross appeal from somuch of the order as deferred determination, until the trial of the action, of that branch ofthe plaintiff's motion which was to direct that an adverse inference charge be given attrial must be dismissed, as leave to cross-appeal from that portion of the order has notbeen obtained (see Anesthesia Assoc. of Mount Kisco, LLP v Northern WestchesterHosp. Ctr., 44 AD3d at 976; Beharry v Guzman, 33 AD3d at 742;Kaplan v Rosiello, 16 AD3d at 626-627), and we decline to grant leave. Rivera,J.P., Hall, Roman and Miller, JJ., concur.