NATIONAL CONVENTION SERVICES LLC v. [And a Third–Party Action] (2023)

Order, Supreme Court, New York County (Melissa A. Crane, J.), entered September 7, 2022, which, insofar as appealed from as limited by the briefs, denied defendant FB International, Inc.'s motion pursuant to CPLR 3126 for sanctions based on alleged discovery abuse, unanimously affirmed, with costs.

“[The trial] court is vested with broad discretion to control its calendar and supervise disclosure in order to facilitate the resolution of cases, and the imposition of sanctions for discovery misfeasance is generally a matter best left to the trial court's discretion” (CDR Créances S.A.S. v. Cohen, 62 A.D.3d 576, 577, 880 N.Y.S.2d 251 [1st Dept. 2009]).  “Although [the Appellate Division is] empowered to substitute our own discretion for that of the trial court, this is a power we rarely and reluctantly invoke” (Pettinato v. EQR–Rivertower, LLC, 213 A.D.3d 46, 58, 182 N.Y.S.3d 64 [1st Dept. 2023] [internal quotation marks omitted]).

It was unrefuted that National Convention Services, LLC (NCS) was unable to provide a detailed list of documents and information that were lost due to Superstorm Sandy, as the boxes containing documents that were placed in basement storage, were wet, soiled, and unrecognizable.  Moreover, the March 14, 2022, affidavit provided by NCS's IT consultant established that the emails of certain former employees were located on an older email service that were populated to the employees' personal computer.  Once the employees left employment, their files were put on a network server drive, some of which became corrupted due to an electrical outage.  FB is therefore unable to demonstrate spoliation of evidence, since, at a minimum, defendant was unable to demonstrate a culpable state of mind and relevancy to the claims or defenses at issue (VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33, 45, 939 N.Y.S.2d 321 [1st Dept. 2012]).