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).”