You are here: / / AFTER FINDING SPOLIATION OF EVIDENCE BY DEFENDANTS, THE JUDGE FASHIONED...
, ,

AFTER FINDING SPOLIATION OF EVIDENCE BY DEFENDANTS, THE JUDGE FASHIONED AN ADVERSE INFERENCE JURY INSTRUCTION TO BE GIVEN AT TRIAL; THE CHARGE IMPROPERLY REQUIRED, RATHER THAN PERMITTED, THE JURY TO FIND SPOLIATION; THE JUDGE WAS ORDERED TO REVISE THE CHARGE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the adverse inference jury charge was inappropriate because it requires, rather than permits, the jury to draw an adverse inference from the spoliation of evidence. The appeal was from the judge’s ruling on plaintiff’s motion for an adverse inference charge. The judge was directed to fashion a new adverse inference charge:

Upon its determination that defendants’ spoliation of evidence amounted to gross negligence, the court directed that the jury be instructed that “had the evidence been preserved the evidence would have been against defendants’ position that [defendant] Marom and/or his workers did not cut down branches or trees or inserted rotting garbage in the barriers on [plaintiff’s] property.” This adverse inference charge is inappropriate because it “requires, rather than permits, the jury to draw an adverse inference” … . In any event, because the conflicting testimony in the record raises questions concerning the existence of the purportedly spoliated evidence, the issues of whether any spoliation had occurred and whether any adverse inference is warranted should be presented to the jury in the first instance … . Children’s Magical Garden, Inc. v Marom, 2023 NY Slip Op 05464, First Dept 10-31-23

Practice Point: With respect to spoliation of evidence, an adverse inference charge should permit, rather than require, the jury to find spoliation.

Practice Point: It appears that this appeal was brought before trial to address the erroneous adverse inference charge fashioned by the judge. The appeal successfully required the revision of the erroneous charge before the jury heard it.

 

You might also like
ACTION BASED UPON FAILURE TO SUPERVISE PLAINTIFF’S USE OF A HOSPITAL REST ROOM SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, THE ACTION WAS THEREFORE TIME-BARRED (FIRST DEPT).
NO QUESTION OF FACT RAISED ABOUT AN ALLEGED ORAL WAIVER OF A LEASE PROVISION, CRITERIA EXLAINED.
PLAINTIFF-STUDENT’S CHEMICAL BURNS WERE CAUSED BY THE INTENTIONALLY WRONGFUL, SPONTANEOUS, UNFORESEEABLE ACTS OF THIRD PARTIES OVER WHOM DEFENDANT SCHOOL HAD NO CONTROL OR AUTHORITY; STUDENTS HAD APPARENLY PUT DRANO IN A WATER BOTTLE WHICH PLAINTIFF KICKED; TWO-JUSTICE DISSENT ARGUED THE SCHOOL DID NOT MEET ITS BURDEN OF PROOF ON ITS LACK OF NOTICE (FIRST DEPT). ​
FAIR MARKET RENT APPEAL PROPERLY DISMISSED.
BOTH INSURANCE POLICIES WERE DEEMED TO COVER SEXUAL HARASSMENT CLAIMS AGAINST AN EMPLOYER AND ITS EMPLOYEE BROUGHT BY SEVERAL CO-EMPLOYEES SPANNING YEARS AND DIFFERENT WORKPLACES; THE POLICY LANGUAGE DID NOT RESTRICT THE COVERAGE FOR “RELATED” OR “INTERRELATED ACTS” TO A SINGLE PLAINTIFF (FIRST DEPT).
AN EXAMINATION UNDER OATH (EUO) CAN BE REQUESTED BY THE NO-FAULT INSURER BEFORE THE INSURER RECEIVES A CLAIM FORM FROM THE MEDICAL PROVIDER.
QUESTIONS OF FACT WHETHER THE ASSAILANT WAS AN INTRUDER AND WHETHER THE LANDLORD HAD NOTICE OF THE DEFECTIVE DOOR LOCK IN THIS THIRD-PARTY ASSAULT CASE; LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
Judges Not Entitled to Retroactive Monetary Damages Re: Legislature’s Failure to Enact Cost of Living Increases Since 2000

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

THE QUESTIONNAIRES FILLED OUT BY APPLICANTS FOR CITY JUDICIAL POSITIONS WERE... THE AVAILABILTY OF GOVERNMENT RECORDS ON A PUBLIC WEBSITE DOES NOT SATISFY A...