New York Supreme and/or Appellate Courts Appellate Division, First Department
May 9, 2013
ORTHOTEC, LLC, PLAINTIFF-RESPONDENT,
HEALTHPOINTCAPITAL, LLC, ET AL., DEFENDANTS-APPELLANTS, SCIENT'X, S.A.,
OrthoTec, LLC v HealthpointCapital, LLC
Decided on May 9, 2013
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.
Andrias, J.P., Saxe, Freedman, Roman, JJ.
Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered October 2, 2012, which denied defendants' motion for spoliation sanctions, unanimously affirmed, without costs.
The motion court properly denied defendants' motion to strike the cause of action for intentional interference with economic advantage as a sanction for spoliation since the spoliation did not deprive defendants of their ability to defend against the claim (see Suazo v Linden Plaza Assoc., L.P., 102 AD3d 570 [1st Dept 2013]; see also Melcher v Apollo Med. Fund Mgt. L.L.C., ___ AD3d ___, 959 NYS2d 133 [1st Dept 2013]). With respect to any other spoliation sanction, the court properly found that the "zone of the preservation duty" encompasses only documents drafted subsequent to 2008, when plaintiff began seriously contemplating initiating this litigation (see VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33 [1st Dept 2012]), and that the evidence of plaintiff's preservation and collection of any such documents is inadequate to show the degree of its culpability (see Melcher, 2013 NY Slip Op 00443, *6).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 9, 2013
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