SHAMASH v. DAVID BOCCHI INC (2023)

Supreme Court, Appellate Division, First Department, New York.

Sonia SHAMASH, Plaintiff–Appellant, v. DAVID BOCCHI INC., et al., Defendants–Respondents.

451 Decided: June 13, 2023

Oing, J.P., Singh, Moulton, Scarpulla, Shulman, JJ.

Stagg Wabnik Law Group LLP, Garden City (Debra L. Wabnik of counsel), for appellant. Sullivan & Worcester, LLP, New York (Gerry Silver of counsel), for respondents.

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about August 18, 2022, which granted defendants David Bocchi Inc., David Bocchi, Cheyenne McMillion, and Matthew Kern's motion for spoliation sanctions to the extent of entitling defendants to an adverse inference instruction at the time of trial and denied plaintiff's cross-motion for sanctions, unanimously affirmed, without costs.

The motion court providently exercised its discretion in granting an adverse inference instruction for plaintiff's failure to preserve text messages between her and a former coworker. Plaintiff acted negligently in failing to preserve those messages when she purportedly broke her phone and the lost messages were relevant to contested issues in this action (VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33, 41–43, 939 N.Y.S.2d 321 [1st Dept. 2012]).

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