| AJ Holdings Group, LLC v IP Holdings, LLC |
| 2015 NY Slip Op 04943 [129 AD3d 504] |
| June 11, 2015 |
| Appellate Division, First Department |
[*1]
| AJ Holdings Group, LLC, Appellant, v IPHoldings, LLC, et al., Respondents. |
Nesenoff & Miltenberg, LLP, New York (Philip A. Byler of counsel), forappellant.
Blank Rome, LLP, New York (Leslie D. Corwin of counsel), for respondents.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered September19, 2014, which, insofar as appealed from, granted defendants' motion for spoliationsanctions, unanimously reversed, on the law and the facts, without costs, and theimposition of discovery sanctions vacated. Appeal from order, same court and Justice,entered on or about July 7, 2014, which denied that portion of plaintiff's cross motionwhich sought "renewal" of its summary judgment motion, unanimously dismissed,without costs, as taken from a nonappealable order.
Plaintiff's failure to ensure that its principals, who were all involved in the instanttransactions, preserved their emails on various accounts used by them, and its failure toimplement any uniform or centralized plan to preserve data or even the various devicesused by the "key players" in the transaction, demonstrated gross negligence with regardto the deletion of the emails (seeVOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 45 [1stDept 2012]). This gross negligence gave rise to a rebuttable presumption that thespoliated documents were relevant (id.). However, plaintiff sufficiently rebuttedthat presumption by demonstrating that the defenses available to defendants allnecessarily turned on communications to or with them, not plaintiff's internalcommunications.
In particular, defendants claim that there was an oral modification to the parties'contract, whereby plaintiff waived the termination provisions. This is despite the fact thatthe agreement contained a clause barring oral modifications. In such a circumstance,defendants must establish an executed oral modification, or partial performance orestoppel "unequivocally referable" to the alleged oral modification (Greenberg vFrey, 190 AD2d 546, 547 [1st Dept 1993]). Because defendants can have only reliedon communications they received from plaintiff to establish this defense, there is nosense in which the deleted internal emails of plaintiff would be relevant. As such, it waserror to impose spoliation sanctions.
The IAS court correctly held that plaintiff's motion to "renew" its previous summaryjudgment motion was actually an untimely motion to reargue, as plaintiff based it not onany newly discovered information, but on the theory that the IAS court had "overlooked"the integration clause in the agreement (see CPLR 2221 [d], [e]). Moreover, asthe IAS court held, plaintiff can bring the motion again at the close of discovery.Concur—Tom, J.P., Renwick, Andrias and Manzanet-Daniels, JJ. [Prior CaseHistory: 2014 NY Slip Op 31797(U).]