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DISMISSAL OF COMPLAINT TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE, RELEVANT LAW CLEARLY EXPLAINED.

The First Department determined the trial court correctly found sanctions should be imposed on plaintiff (Arbor) for spoliation of evidence, but the dismissal of the complaint was too severe. The court offered a clear explanation of the relevant law:

“Failures which support a finding of gross negligence, when the duty to preserve electronic data has been triggered, include: (1) the failure to issue a written litigation hold []; (2) the failure to identify all of the key players and to ensure that their electronic and other records are preserved; and (3) the failure to cease the deletion of e-mail” … . Here, the motion court correctly determined that Arbor’s destruction of evidence was, at a minimum, gross negligence, since Arbor failed to institute a formal litigation hold until approximately two years after even Arbor admits it had an obligation to do so. The minutes further reveal the extent to which Arbor failed to identify all of the key players in the loan transaction, and failed to preserve their electronic records. Where, as here, the spoliation is the result of the plaintiff’s intentional destruction or gross negligence, the relevance of the evidence lost or destroyed is presumed … . Plaintiff failed to rebut this presumption. Accordingly, the motion court properly determined an appropriate sanction should be imposed on plaintiff. However, the sanction must reflect “an appropriate balancing under the circumstances,” … . Generally, dismissal of the complaint is warranted only where the spoliated evidence constitutes “the sole means” by which the defendant can establish its defense … , or where the defense was otherwise “fatally compromised” … or defendant is rendered “prejudicially bereft” of its ability to defend as a result of the spoliation … . The record upon renewal does not support such a finding, given the massive document production and the key witnesses that are available to testify … . Accordingly, an adverse inference charge is an appropriate sanction under the circumstances … . Arbor Realty Funding, LLC v Herrick, Feinstein LLP, 2016 NY Slip Op 05065, 1st Dept 6-28-16

CIVIL PROCEDURE (DISMISSAL OF COMPLAINT TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE, RELEVANT LAW CLEARLY EXPLAINED)/EVIDENCE (CIVIL, DISMISSAL OF COMPLAINT TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE, RELEVANT LAW CLEARLY EXPLAINED)/SPOLIATION (DISMISSAL OF COMPLAINT TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE, RELEVANT LAW CLEARLY EXPLAINED)

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