CHILDREN MAGICAL GARDEN INC v. MAROM (2023)

Order, Supreme Court, New York County (Andrea Masley, J.), entered on or about October 5, 2022, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for an adverse inference charge as a sanction for spoliation of evidence, unanimously modified, on the law and the facts, to delete the adverse inference charge as specified, and remand the matter for a new adverse inference charge in accordance herewith, and otherwise affirmed, without costs.

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” (Temiz v. TJX Cos., Inc., 178 A.D.3d 620, 621, 112 N.Y.S.3d 497 [1st Dept. 2019]).  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 (see Krin v. Lenox Hill Hosp., 88 A.D.3d 597, 597, 931 N.Y.S.2d 65 [1st Dept. 2011];  Lilavois v. JP Morgan Chase & Co., 151 A.D.3d 711, 712, 54 N.Y.S.3d 664 [2d Dept. 2017]).

We decline to consider defendants’ request for a hearing on the motion and their defense of laches, which are improperly raised for the first time on appeal.