Spoliation of evidence is a certain basis for dismissal.  Negligently, or even worse, intentionally allowing key evidence to be lost or destroyed deprives the opponent of discoverable exculpatory evidence.  Such loss is rarely countenanced.

Manno v Hayes Law Practice, PLLC  2020 NY Slip Op 31228(U)  May 6, 2020  Supreme Court, Kings County  Docket Number: Index No. 520104/16  Judge: Edgar G. Walker discusses what to do when the central piece of evidence is gone.

“Defendants Hayes Law Practice, PLLC and Patrick J. Hayes, Esq.=s motion seeking an order dismissing the plaintiff=s complaint, pursuant to CPLR ‘3126, for spoliation of evidence
and for failure to provide outstanding discovery, is granted. This is a legal malpractice claim that the plaintiffs brought after their underlying lawsuit was dismissed. In that case, the plaintiffs claimed that their home was badly damaged as a result of construction and demolition work done to the home on the neighboring property, which shared a common wall with their home. The plaintiffs= original claims were dismissed because some were brought beyond the governing statute of limitations and the others were dismissed because
of a filing error. Thereafter, the plaintiffs commenced the within action. The plaintiffs’claims against all but the moving defendants were previously dismissed, and now the remaining
defendants move to dismiss based upon claims of spoliation of evidence and failure to comply with court ordered discovery.

The movants argue that the plaintiffs have failed to provide responses to their discovery demands despite several court orders instructing them to do so. More egregiously, the defendants contend that the plaintiffs disposed of the one piece of evidence that is at the center of this case when they sold their home, which was thereafter demolished before the defendants= experts had an opportunity to inspect it. The defendants argue that as a result of the plaintiffs= actions, they cannot mount a proper defense.
Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR ‘3126.
Holland v W.M. Realty Mgt., Inc., 64 A.D.3d 627 (2nd Dept. 2009). The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of
evidence and may, under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness. Biniachvili v Yeshivat Shaare Torah, Inc., 120 A.D.3d 605 (2nd Dept. 2014).

Spoliation sanctions are not limited to cases where the evidence was destroyed willfully or in bad faith, since a party’s negligent loss of evidence can be just as fatal to another party’s
ability to present a case or a defense. DiDomenico v C & S Aeromatik Supplies, 252 A.D.2d 41 (2nd Dept. 1998). AWhen a party alters, loses or destroys key evidence before it can be examined by the other party’s expert, the court should dismiss the pleadings of the party responsible for the spoliation.@ Squitieri v. City of New York, 248 A.D.2d 201 (1st Dept. 1998).”

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.