CASILLAS v. MOORE (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Robert F. Quinlan, J.), dated April 27, 2022.  The order granted the plaintiff's motion pursuant to CPLR 3126 to strike the defendants’ answer only to the extent of determining that the plaintiff was entitled to an adverse inference charge at trial.

ORDERED that the order is affirmed, without costs or disbursements.

In May 2015, the plaintiff commenced this action against the defendants, Brian P. Moore, a Suffolk County police officer, Suffolk County Police Department, and County of Suffolk, to recover damages for personal injuries he allegedly sustained in a motor vehicle accident.

In March 2022, the plaintiff moved pursuant to CPLR 3126 to strike the defendants’ answer for their failure to comply with various orders relating to discovery and spoliation of evidence.  The defendants opposed the motion.

In an order dated April 27, 2022, the Supreme Court granted the plaintiff's motion only to the extent of determining that the plaintiff was entitled to an adverse inference charge at trial.  The plaintiff appeals.

Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading, where a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” (see CPLR 3126[3];  Sanabria v. NYSARC, Inc., 204 A.D.3d 716, 717, 163 N.Y.S.3d 871).  “The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court's discretion” (Crupi v. Rashid, 157 A.D.3d 858, 859, 67 N.Y.S.3d 478;  see Castillo v. Charles, 210 A.D.3d 625, 626, 177 N.Y.S.3d 153).  “However, before a court invokes the drastic remedy of striking a pleading, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious” (Malek v. Malek, 208 A.D.3d 773, 774, 172 N.Y.S.3d 646;  see 255 Butler Assoc., LLC v. 255 Butler, LLC, 208 A.D.3d 831, 834, 173 N.Y.S.3d 672).  “Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time” (Johnson v. Ortiz Transp., LLC, 205 A.D.3d 699, 700, 165 N.Y.S.3d 743 [internal quotation marks omitted];  see Ambroise v. Palmana Realty Corp., 197 A.D.3d 1226, 1227–1228, 153 N.Y.S.3d 572).  Here, the record does not establish a clear showing of willfulness and contumacious conduct necessary to justify the striking of the defendants’ answer, as the defendants have provided significant documentation and additional depositions regarding the accident (see Malek v. Malek, 208 A.D.3d at 774–775, 172 N.Y.S.3d 646;  Johnson v. Ortiz Transp., LLC, 205 A.D.3d at 700, 165 N.Y.S.3d 743).

“Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126” (Matthews v. Geothermal Energy Options, LLC, 209 A.D.3d 635, 636, 175 N.Y.S.3d 553 [internal quotation marks omitted];  see Henry v. Atlantis Rehabilitation & Residential Healthcare Facility, LLC, 194 A.D.3d 1018, 1020, 148 N.Y.S.3d 509).  The court has the discretion to determine the appropriate sanction for the spoliation of evidence (see Squillacioti v. Independent Group Home Living Program, Inc., 167 A.D.3d 673, 675, 90 N.Y.S.3d 51).  However, because striking a pleading is a drastic sanction to impose, “[w]hen the moving party is still able to establish or defend a case, a less severe sanction is appropriate” (Amos v. Southampton Hosp., 198 A.D.3d 947, 948, 156 N.Y.S.3d 349 [internal quotation marks omitted];  see Angotti v. Petro Home Servs., 208 A.D.3d 1294, 1296, 175 N.Y.S.3d 288).  Here, the spoliation of Moore's memo book did not deprive the plaintiff of his ability to prove his case so as to warrant the drastic sanction of striking the defendants’ answer.  Under the circumstances of this case, the lesser sanction of directing that an adverse inference charge be given against the defendants regarding the contents of the memo book concerning the accident was appropriate (see Yi Jiang Pai v. Nelson Senior Hous. Dev. Fund Corp., 232 A.D.3d 822, 826, 222 N.Y.S.3d 580).

BRATHWAITE NELSON, J.P., CHRISTOPHER, WAN and GOLIA, JJ., concur.