Written by attorney Brian C. Pascale

Failure to Preserve Key Evidence Subjects Spoliators to Sanctions

Failure To Preserve Key Evidence Subjects Spoliator To Sanctions

Including Striking Of Pleading Or Preclusion

Striking a party's pleading is warranted when the failure to supply discovery is so pervasive that it in effect precludes an opponent from making out his action or defense. The penalties are designed to prevent a litigant who has failed to preserve evidence from affirmatively exploiting or benefiting from the unavailability of the proof during the pending civil action. See; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3126:7, C3126:8, at 757-760.

Courts in New York have long held that a spoliator of critical evidence will pay a high price for those acts, whether the destruction resulted from negligence rather than intent.

When a party, alters, loses or destroys key evidence … the Court should dismiss the pleadings of the party responsible for the spoliation or, at the very least, preclude that party from offering evidence as to the destroyed product.

Spoliation sanctions … are not limited to cases where the evidence was destroyed willfully of in bad faith, since a party’s loss of evidence can be just as fatal to the other party’s ability to present a defense. (emphasis added.)

Squitieri v. NYC, 248 A.D.2d 201 (1st Dept. 1998); see; e.g. Kirkland v. New York City Housing Authority, 236 A.D.2d 170 (1st Dept. 1997).

DiDomenico v. C & S Aeromatik Supplies, Inc. is directly on point. 252 A.D.2d 41 (2d Dept. 1998). In DiDomenico, the plaintiff was injured when a box he was moving caved in, spraying him with a caustic liquid. Following the occurrence, defendant destroyed the subject box and all records relating to the incident. The Second Department held that comprehensive destruction of key evidence “warranted striking [their] answer." The Court wrote that it was “appropriate to strike the answer" since defendant’s acts – failing to preserve the caustic box and all related documents – deprived plaintiff of the proof essential to the claim. “As a consequence, the plaintiff has been left without the means of proving his case ...." 252 A.D.2d at 43.

The Appellate Division in Herrera v. Maitlin granted the plaintiff’s motion to strike the defendant’s answer for spoliation of evidence. In Herrera, defendant failed to maintain the plaintiff’s medical records – depriving plaintiff of “any means of establishing a prima facie case." 303 A.D.2d 198 (1st Dept. 2003); see also; Gray v. Jaeger, 17 A.D.3d 286 (1st Dept. 2005) (striking answer was the appropriate remedy for defendant’s “negligent" failure to maintain critical medical records.); Bear, Stearns & Co., Inc. v. Enviropower, LLC, 21 A.D.3d 855 (1st Dept. 2005) (answer stricken due to negligent spoliation of documents).

The case of Erdely v. Access Direct Systems, Inc., is further instructive. 45 A.D.3d 724 (2d Dept. 2007). In Erdely, the plaintiff was injured while performing maintenance work at the defendant’s premises when a wooden ladder he was directed to use cracked and kicked-out from under him, causing him to fall. Despite immediate notice of the accident and the circumstances which caused it, defendant disposed of the ladder. Under these circumstances, the Erdely Court held that defendant was precluded from controverting plaintiff’s proof of negligence since loss of the ladder weakened plaintiff’s ability to establish a prima facie case.

Additional resources provided by the author

Legal Disclaimer: Mr. Pascale is licensed to practice law in the State of New York. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and time-lines that, if known, could significantly change the reply and make it unsuitable. Mr. Pascale strongly advises the questioner to confer with an attorney in their state in order to insure proper advice is received.

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