SPOLIATION

In 2009, plaintiff's truck was damaged by defendant. The action was commenced in 2010. In 2014, defendants demanded to inspect the truck. Plaintiff failed to comply and revealed in 2016 that the truck was sold. Defendants moved to strike the complaint.

Delmur, Inc. v School Constr. Auth,  2019 NY Slip Op 05764, Decided on July 24, 2019, Appellate Division, Second Department:

""Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126'" (Samaroo v Bogopa Serv. Corp., 106 AD3d 713, 713-714, quoting Holland v W.M. Realty Mgt., Inc., 64 AD3d 627, 629). " [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'" (Doviak v Finkelstein & Partners, LLP, 137 AD3d 843, 846, quoting Biniachvili v Yeshivat Shaare Torah, Inc., 120 AD3d 605, 606).

"The nature and severity of the sanction [for spoliation] depends upon a number of factors, including, but not limited to, the knowledge and intent of the spoliator, the existence of proof of an explanation for the loss of evidence, and the degree of prejudice to the opposing party" (Samaroo v Bogopa Serv. Corp., 106 AD3d at 714). " Recognizing that striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct, courts will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness'" (Jennings v Orange Regional Med. Ctr., 102 AD3d 654, 655-656, quoting Iannucci v Rose, 8 AD3d 437, 438).

As the party seeking sanctions for spoliation, the defendants were required to demonstrate "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 . . . such that the trier of fact could find that the evidence would support that claim" (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547 [internal quotation marks omitted]; see Franco Belli Plumbing & Heating & Sons, Inc. v Dimino, 164 AD3d 1309, 1313; Saeed v City of New York, 156 AD3d 735, 737). "A culpable state of mind for purposes of a spoliation sanction includes ordinary negligence" (VOOM HD Holdings LLC v EchoStar Satellite LLC, 93 AD3d 33, 45 [internal quotation marks omitted]). "Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed [evidence] is presumed. On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed [evidence was] relevant to the party's claim or defense" (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d at 547-548 [citation omitted]).

Here, on their motion pursuant to CPLR 3126 to strike the complaint, the defendants sustained their burden of establishing that the plaintiff was obligated to preserve the truck at the time it was purportedly "seized and disposed" of, that the truck had been seized and disposed of before the defendants had an opportunity to inspect it, and that the truck was relevant to the litigation (see [*3]Richter v BMW of N. Am., LLC, 166 AD3d 1029, 1030). Furthermore, the defendants demonstrated that their ability to prove their defense had been significantly, if not fatally, compromised by the loss of the truck. Under the circumstances presented, the sanction of striking the complaint was appropriate (see UMS Solutions, Inc. v Biosound Esaote, Inc., 145 AD3d 831, 832-833; Diono v Meltzer, 208 AD2d 798; cf. Richter v BMW of North America, LLC, 166 AD3d at 1030; McDonnell v Sandaro Realty, Inc., 165 AD3d 1090, 1095; Neve v City of New York, 117 AD3d 1006, 1009)."