ADVERSE INFERENCE JURY INSTRUCTION IS THE PROPER SANCTION FOR THE NEGLIGENT DESTRUCTION OF AN EMPLOYEE’S RECORDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST A RESPITE CARE FACILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an adverse inference jury instruction, not striking the answer, was the appropriate sanction in this negligent supervision case. Plaintiffs, coguardians of a blind and disabled adult (Nicholas), alleged negligent supervision and training of an employee (Escajadillo) of the respite care facility where Nicholas fractured his leg. Rosa’s employment records had been negligently destroyed by the facility:

Striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct and, in order to impose such a sanction, the court ” will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness'” … . In contrast, where the moving party has not been deprived of the ability to establish his or her case or defense, a less severe sanction is appropriate … . Where evidence has been found to have been negligently destroyed, adverse inference charges have been found to be appropriate … .

Here, because the plaintiffs asserted causes of action alleging negligent training and supervision, the defendants’ knowledge of any prior wrongdoing by its employees and information concerning their training are issues central to the plaintiffs’ causes of action, and the employees’ personnel files would be critical in determining those issues … . In support of their motion, the plaintiffs established that the defendants improperly failed to “suspend [their] routine document retention/destruction policy and put in place a litigation hold’ to ensure the preservation of relevant documents'” … , resulting in the negligent destruction of Escajadillo’s personnel file. However, the plaintiffs did not demonstrate that they were deprived of the ability to establish their case. Accordingly, the drastic sanction of striking the defendants’ answer is not appropriate … , but the lesser sanction of directing that an adverse inference charge be given at trial with respect to Escajadillo’s personnel file is warranted … . Squillacioti v Independent Group Home Living Program, Inc., 2018 NY Slip Op 08343, Second Dept 12-5-18

NEGLIGENCE (ADVERSE INFERENCE JURY INSTRUCTION IS THE PROPER SANCTION FOR THE NEGLIGENT DESTRUCTION OF AN EMPLOYEE’S RECORDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST A RESPITE CARE FACILITY (SECOND DEPT))/EVIDENCE (NEGLIGENCE, ADVERSE INFERENCE JURY INSTRUCTION IS THE PROPER SANCTION FOR THE NEGLIGENT DESTRUCTION OF AN EMPLOYEE’S RECORDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST A RESPITE CARE FACILITY (SECOND DEPT))/SPOLIATION (NEGLIGENCE, ADVERSE INFERENCE JURY INSTRUCTION IS THE PROPER SANCTION FOR THE NEGLIGENT DESTRUCTION OF AN EMPLOYEE’S RECORDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST A RESPITE CARE FACILITY (SECOND DEPT))/CIVIL PROCEDURE (NEGLIGENCE, SPOLIATION, ADVERSE INFERENCE JURY INSTRUCTION IS THE PROPER SANCTION FOR THE NEGLIGENT DESTRUCTION OF AN EMPLOYEE’S RECORDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST A RESPITE CARE FACILITY (SECOND DEPT))