Today we once again look at Doviak v Finkelstein & Partners, LLP  2016 NY Slip Op 01636
Decided on March 9, 2016  Appellate Division, Second Department, this time for the question of spoliation in a legal malpractice setting.  What happens when a particular piece of paper assumes enormous importance and might require forensic testing for fingerprints?

“The defendants Andrew G. Finkelstein and Thomas C. Yatto, attorneys with the law firm Finkelstein & Partners, LLP (hereinafter collectively the defendants), represented the plaintiffs in an underlying personal injury action stemming from injuries that the plaintiff Robert Doviak (hereinafter Doviak) sustained when he fell from a height while working on the construction of a building for Lowe’s Home Centers, Inc. (hereinafter Lowe’s). Doviak and his wife, Zaytune Doviak (hereinafter Mrs. Doviak; hereinafter together the plaintiffs), engaged the defendants to represent them in the personal injury action against Lowe’s and others (hereinafter collectively the personal injury defendants).

During the trial of the underlying injury action, the personal injury defendants extended settlement offers in the sums of $4 million, $8 million, $9.25 million, and $10 million, respectively, each of which the plaintiffs declined upon the defendants’ advice. On the evening after the parties had rested, and prior to summations, the personal injury defendants extended a written settlement offer in the sum of $12 million, along with a structured settlement plan which would yield greater sums if invested as proposed (hereinafter the $12 million offer).

Yatto, who represented the plaintiffs at trial, testified that he communicated the $12 million offer to the plaintiffs and handed Mrs. Doviak the written document containing the offer (hereinafter the offer document) to review but that, the following morning, Mrs. Doviak explicitly rejected the $12 million offer and handed the offer document back to him. The plaintiffs, on the other hand, testified that they were never informed of the $12 million offer and that, had they been informed of it, they would have accepted it.

The jury in the personal injury action returned a verdict in favor of the plaintiffs in the sum of approximately $3.7 million. The defendants successfully sought additur from the Supreme Court, Ulster County, which increased the verdict to the sum of approximately $6.8 million. In November 2007, after the successful additur motion, the plaintiffs discharged the defendants and engaged successor counsel. Successor counsel obtained further additur from the Appellate Division, Third Department, for a total verdict in the sum of approximately $9.3 million (see Doviak v Lowe’s Home Ctrs., Inc., 63 AD3d 1348).

The plaintiffs thereafter commenced this action against the defendants, alleging, inter alia, that the defendants committed legal malpractice by failing to communicate the $12 million offer to them. The plaintiffs also alleged a variety of other legal errors and sought, inter alia, a finding that they had discharged the defendants for cause and that, accordingly, the defendants were not entitled to recover fees in the personal injury action.

During Mrs. Doviak’s deposition in this action, the defendants’ counsel handed her the original offer document. The plaintiffs subsequently moved to impose sanctions on the defendants on the ground that the defendants had failed to preserve the offer document for fingerprint analysis and had made such analysis impossible. The plaintiffs maintained that, had the offer document been analyzed, it would have revealed that Mrs. Doviak’s fingerprints were not on it and, therefore, would have been evidence that the defendants had not delivered the $12 million offer to them. The Supreme Court denied the plaintiffs’ motion.”

“”Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence” (Morales v City of New York, 130 AD3d 792, 793; seeCPLR 3126; Eremina v Scparta, 120 AD3d 616, 617; Biniachvili v Yeshivat Shaare Torah, Inc., 120 AD3d 605, 606). “The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to prove its claim or defense” (Morales v City of New York, 130 AD3d at 793 [internal quotation marks omitted]; see Lentini v Weschler, 120 AD3d 1200, 1201). “[T]he 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, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation” (Biniachvili v Yeshivat Shaare Torah, Inc., 120 AD3d at 606; see Ortiz v Bajwa Dev. Corp., 89 AD3d 999;Awon v Harran Transp. Co., Inc., 69 AD3d 889, 890; but see Eremina v Scparta, 120 AD3d at 618). This Court will substitute its judgment for that of the Supreme Court only if that court’s discretion was improvidently exercised (see Morales v City of New York, 130 AD3d at 793; Samaroo v Bogopa Serv. Corp., 106 AD3d 713, 714; Ortiz v Bajwa Dev. Corp., 89 AD3d at 999).

Here, the record supports the Supreme Court’s conclusion that the plaintiffs failed to demonstrate that the defendants intentionally or negligently destroyed fingerprint evidence which was critical to their case. The plaintiffs failed to demonstrate that they requested that the offer document be tested for fingerprints, or that it be preserved for forensic testing prior to Mrs. Doviak’s deposition, or otherwise informed the defendants of their desire to conduct fingerprint analysis. The plaintiffs’ boilerplate demand during discovery that they be permitted to examine original documents on request does not satisfy this requirement, nor is it reasonable to contend that the defendants should have anticipated the plaintiffs’ desire for forensic testing of the offer document (cf. Standard Fire Ins. Co. v Federal Pac. Elec. Co., 14 AD3d 213, 217). Thus, the plaintiffs failed to demonstrate that, in handing the original document to Mrs. Doviak at her deposition, the defendants intentionally or negligently destroyed potential forensic evidence (see Morales v City of New York, 130 AD3d at 793; Lentini v Weschler, 120 AD3d at 1201). In any event, the plaintiffs failed to demonstrate that, by failing to preserve the offer document for forensic testing, the defendants had fatally compromised the plaintiffs’ ability to prove their claims (see Morales v City of New York, 130 AD3d at 793; Lentini v Weschler, 120 AD3d at 1201). Therefore, the court providently exercised its discretion in denying the plaintiffs’ motion for sanctions for spoliation.