ALPHAS v. SMITH (2019)

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered January 10, 2018, which, to the extent appealed from, granted defendants' motion for discovery sanctions to the extent of ordering that at trial an adverse inference charge shall be given against plaintiffs relating to the documents plaintiffs claim were lost or destroyed, unanimously affirmed, without costs.

Plaintiffs do not dispute that they had a duty to preserve relevant documents and that the documents they claim were lost or destroyed were relevant (see Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 [S.D N.Y. 2003];  Voom HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33, 36, 939 N.Y.S.2d 321 [1st Dept. 2012] ).  They argue only that defendants failed to show that they acted negligently (see Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d 543, 547–548, 46 N.E.3d 601 [2015] ).

We find that the motion court found that plaintiffs acted negligently.  Plaintiffs argue that, despite a court order of protection, plaintiff Peter Alphas's landlord illegally evicted him and destroyed his records.  However, even if there was a court order of protection, plaintiff's decision to store his only copy of these records in a location that was the subject of an eviction proceeding, while he was under an obligation to safeguard the documents, demonstrates negligence.

As noted by the court, spoliation sanctions “are not limited to cases where the evidence was destroyed willfully or in bad faith, since a party's negligent loss of evidence can be just as fatal to the other party's ability to present a defense” (Strong v. City of New York, 112 A.D.3d 15, 21, 973 N.Y.S.2d 152 [1st Dept. 2013] ).  While the record did not demonstrate that plaintiff destroyed the documents willfully or in bad faith, so as to warrant striking the pleading, “a less severe sanction would be appropriate.”