You are here: / / Whether Lost Evidence Was Relevant to Plaintiff’s Case Presented...
,

Whether Lost Evidence Was Relevant to Plaintiff’s Case Presented a Jury Question—Only If the Jury Determines the Evidence Was Relevant Can the Jury Consider the Adverse Inference Charge for Spoliation of Evidence

The Second Department determined there was a question of fact whether the failure to preserve a broken jar, the cause of plaintiff’s injury, warranted an adverse inference charge.  Whether the jar was relevant to the plaintiff’s case was a question raised by conflicting expert opinions. The question of fact must first be resolved by the jury before the adverse inference charge could be applied by the jury:

While the lesser sanction of an adverse inference may be appropriate for spoliation of the subject jar …, under the circumstances of this case, an issue of fact exists as to whether spoliation of relevant evidence occurred. The sanction of an adverse inference for spoliation of evidence is not warranted when the evidence destroyed is not relevant to the ultimate issues to be determined in the case … . …[T]he plaintiff submitted an expert affidavit averring that she could have determined how long the jar had been broken by analyzing the mold contained in the jar, and the defendant submitted an expert affidavit disputing that such a conclusion could have been reached. If the opinion of the defendant’s expert were credited, then an adverse inference would not be warranted, because the lost evidence would not have been relevant to the plaintiff’s case … . Thus, this issue of fact should be placed before the jury, along with the inferences to be drawn therefrom … . The jury should be instructed that, if it credits the opinion of the defendant’s expert that no conclusion could have been reached with reasonable certainty regarding how long the jar had been broken by analyzing the mold contained in the jar, then no adverse inference should be drawn against the defendant. On the other hand, the jury should be advised that, if it credits the opinion of the plaintiff’s expert that she could have determined how long the jar had been broken by analyzing the mold inside, then it would be permitted to draw an adverse inference against the defendant … . Pennachio v Costco Wholesale Corp, 2014 NY Slip Op 05165, 2nd Dept 7-9-14

 

You might also like
THE COMPLAINT IN THIS TRAFFIC ACCIDENT CASE STATED CAUSES OF ACTION (1) FOR FRAUDULENT INDUCEMENT TO SIGN A RELEASE AND (2) FOR RESCISSION OF THE RELEASE BASED UPON UNILATERAL MISTAKE (SECOND DEPT).
BECAUSE INDIVIDUAL CONDOMINIUM OWNERS ARE RESPONSIBLE FOR THE INSTALLATION OF WINDOW GUARDS, THE DEFENDANT CONDOMINIUM DID NOT HAVE A DUTY TO INSTALL WINDOW GUARDS; THEREFORE THE CONDOMINIUM COULD NOT BE LIABLE FOR PLAINTIFFS’ DAUGHTER’S FALL FROM THE WINDOW UNDER THE FAILURE-TO-INSTALL THEORY; HOWEVER, THE CAUSE OF ACTION BASED UPON THE CONDOMINIUM’S FAILURE TO GIVE PLAINTIFFS NOTICE OF THE CITY’S WINDOW-GUARD REQUIREMENT SURVIVED THE DISMISSAL MOTION (SECOND DEPT).
JUVENILE DELINQUENCY ADJUDICATION AGAINST THE WEIGHT OF THE EVIDENCE; ANALYTICAL CRITERIA EXPLAINED.
Failure to Demonstrate When Plaintiff Should Have First Become Aware of Fraudulent Conveyance Precluded Dismissal on Statute of Limitations Grounds​
Conviction Reversed Because Court Failed to Inquire About the Reasons for Defendant’s Request for Substitution of Counsel After Trial Began
IN THIS BREACH OF CONTRACT SUIT CONCERNING SHARING ATTORNEY’S FEES, THE COMPLAINT DID NOT ALLEGE SUFFICIENT FACTS TO STATE A CAUSE OF ACTION AGAINST AN INDIVIDUAL ATTORNEY, AS OPPOSED TO THE ATTORNEY’S FIRM (SECOND DEPT). ​
Failure to Trace the Allegedly Separate Funds Used for the Purchase of Property During the Marriage Allows the Court to Treat the Property as Marital
PETITIONER’S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Petitioner Sufficiently Alleged She Is a Nonmarital Child of the Decedent—Probate... Subsequent Action Which Included Claims Which Could Have Been Raised in the...