NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
March 3, 2009
DONALD KUGEL, PLAINTIFF-RESPONDENT,
CITY OF NEW YORK, ET AL., DEFENDANTS,
A. JETTA TOWING, DEFENDANT-APPELLANT.
Order, Supreme Court, New York County (Karen S. Smith, J.), entered June 25, 2008, which, to the extent appealed from, granted plaintiff's cross motion to strike defendant's answer for spoliation of evidence and award judgment on liability, unanimously reversed, on the law, without costs, the cross motion denied and the answer reinstated.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Gonzalez, Sweeny, McGuire, DeGrasse, JJ.
While a party's pleading may be struck as a sanction for the intentional destruction of key evidence (see Amaris v Sharp Elecs. Corp., 304 AD2d 457 , lv denied 1 NY3d 507 ), the documents destroyed by defendant, allegedly because its president believed the corporation had been dissolved, did not constitute key evidence warranting such a harsh sanction. Where the destroyed evidence is not crucial to the proof of the plaintiff's case, as here, a lesser sanction for spoliation is appropriate (see Metropolitan N.Y. Coordinating Council on Jewish Poverty v FGP Bush Term., 1 AD3d 168 ; Tommy Hilfiger, USA v Commonwealth Trucking, 300 AD2d 58, 60 ). As we have said, "[a]lthough some lesser sanction . . . appears to be appropriate, that is a matter best left to the discretion of the trial court and should be made on the basis of the record before it at the time" (Quinn v City University of NY, 43 AD3d 679, 680 ). Furthermore, the record does not establish that defendant's failure to comply with discovery demands was willful, contumacious or in bad faith (see Mangual v New York City Tr. Auth., 48 AD3d 212 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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