McGlynn v Burns & Harris, Esq. 2024 NY Slip Op 00187 Decided on January 17, 2024
Appellate Division, Second Department, which we discussed last week, has a secondary issue. Was it spoliation to discard a litigation file?

“In 2007, the plaintiff retained the defendant Burns & Harris, Esq. (hereinafter the B & H law firm), to represent him in the prosecution of an action to recover damages for personal injuries he allegedly sustained in March 2005 while working for United Parcel Service due to an allegedly defective condition on a loading dock in Brooklyn. The defendant Alison R. Keenan was the attorney assigned to handle the plaintiff’s case. The B & H law firm commenced two separate actions on the plaintiff’s behalf against alleged owners of the loading dock. The actions were consolidated (hereinafter the personal injury action), and a default judgment against all the defendants in the personal injury action was obtained, awarding the plaintiff the total sum of $255,914.50.

The plaintiff alleged that he was unable to collect the judgment because the insurance providers for the defendants in the personal injury action disclaimed coverage on the ground that timely notice of the claim was not provided. The plaintiff commenced this action against the B & H law firm and Keenan (hereinafter together the law firm defendants), among others, alleging, inter alia, legal malpractice for the failure to investigate and timely notify the applicable insurance carriers in the personal injury action.”

“The Supreme Court providently exercised its discretion in denying the plaintiff’s cross-motion pursuant to CPLR 3126 to strike the law firm defendants’ answer for spoliation of evidence. “A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547 [internal quotation marks omitted]; see S.W. v Catskill Regional Med. Ctr., 211 AD3d 890, 891-892). Here, the plaintiff failed to establish that the law firm defendants had an obligation to preserve the case file from the personal injury action or that it was destroyed with a culpable state of mind (see Tanner v Bethpage Union Free Sch. Dist., 161 AD3d 1210, 1211; Perez v Tedesco, 214 AD3d 1010, 1012).”