Striking Answer for Spoliation of Evidence Too Severe a Sanction—Spoliation Was Not “Willful or Contumacious,” Both Parties Were Prejudiced by the Loss, Plaintiff Was Not Deprived of Means of Proving the Claim

The Second Department determined striking the defendant’s answer was too severe a sanction for spoliation of evidence which was not “willful or contumacious.”  Plaintiff was injured attempting to use a tranquilizer gun. The gun was sent out for repairs after the incident and a portion of the gun was not found after a diligent search.  The sanction was too severe because both parties were prejudiced by the loss and the loss did not deprive plaintiff of the means of proving his claim:

Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence (see CPLR 3126…). “The nature and severity of the sanction 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 the evidence, and the degree of prejudice to the opposing party” … .

“The party requesting sanctions for spoilation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to'” prove its claim or defense … . However, ” striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct'” and, thus, the courts must ” consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness'” … . When the moving party is still able to establish or defend a case, a less severe sanction is appropriate …. Furthermore, where the plaintiffs and the defendants are equally affected by the loss of the evidence in their investigation of the accident, and neither have reaped an unfair advantage in the litigation, it is improper to dismiss or strike a pleading on the basis of spoliation of evidence … .

The determination of the appropriate sanction for spoliation is within the broad discretion of the court … . This Court will substitute its judgment for that of the Supreme Court only if that court’s discretion was improvidently exercised … .

Here, the Supreme Court, upon renewal and reargument, improvidently exercised its discretion in imposing the sanction of striking the City defendants’ answer, as the plaintiff failed to establish that the City defendants’ failure to preserve the subject tranquilizer gun was willful or contumacious … , or that their conduct deprived him of the means of proving his claim … . The City defendants’ repair of the subject gun prejudiced all parties, but does not prevent the plaintiff from proving his claim … . Morales v City of New York, 2015 NY Slip Op 06121, 2nd Dept 7-15-15