THE PLAINTIFF SHOULD NOT HAVE DESTROYED THE UNDERGROUND OIL TANKS WHICH WERE ALLEGED TO HAVE LEAKED, CONTAMINATING PLAINTIFF’S PROPERTY; HOWEVER THE DEFENDANT OIL COMPANIES DID NOT DEMONSRTATE THE DESTRUCTION OF THE TANKS MADE IT IMPOSSIBLE TO PROVE A DEFENSE; THEREFORE AN ADVERSE INFERENCE JURY INSTRUCTION, NOT THE STRIKING OF THE COMPLAINT, WAS THE APPROPRIATE SANCTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the plaintiff should have preserved the underground oil tanks which allegedly leaked and contaminated plaintiff’s property, but that striking the complaint was not warranted under the doctrine of spoliation. Because the defendants did not demonstrate the destruction of the tanks made it impossible to mount a defense, an adverse inference instruction was the appropriate sanction:

The plaintiff commenced this action, inter alia, to recover damages for a violation of Navigation Law § 181, alleging that the defendants Chevron U.S.A., Inc., Getty Oil Company, Getty Refining and Marketing Company, and Getty Oil Company (Eastern Operations), Inc. (hereinafter collectively the defendants), discharged petroleum from underground storage tanks on the plaintiff’s property. * * *

… [T]he defendants demonstrated that the plaintiff had an obligation to preserve the tanks at the time they were disposed of, which was before the defendants had an opportunity to inspect the tanks, that the tanks were destroyed with a culpable state of mind, and that the tanks were relevant to the litigation … . However, the defendants failed to establish that their ability to prove a defense was fatally compromised by the destruction of the tanks, or that the destruction of the tanks was willful and contumacious … . Dagro Assoc. II, LLC v Chevron U.S.A., Inc., 2022 NY Slip Op 03884, Second Dept 6-15-22

Practice Point: Where spoliation of evidence does not take away the defendants’ ability to prove a defense, and where spoliation was not done willfully and contumaciously, striking the complaint is not warranted. The appropriate sanction is an adverse inference jury instruction.