HUEZO v. Silvercrest Extended Care Facility, appellant. (2009)

In an action to recover damages for personal injuries, etc., the defendant Silvercrest Extended Care Facility appeals from so much of an order of the Supreme Court, Queens County (Grays, J.), entered April 28, 2009, as granted the plaintiffs' motion to strike its answer based upon the loss or spoliation of evidence unless it produced certain discovery by a date certain.

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and the plaintiffs' motion to strike the answer of the defendant Silvercrest Extended Care Facility is denied.

 The Supreme Court improvidently exercised its discretion in granting the plaintiffs' motion to strike the appellant's answer based upon the loss or spoliation of evidence unless it produced certain discovery by a date certain.   When a party negligently loses or intentionally destroys key evidence, thereby preventing its opponent from being able to prove its claim or defense, the spoliator may be sanctioned by the striking of its pleading (see Denoyelles v. Gallagher, 40 A.D.3d 1027, 834 N.Y.S.2d 868;  Friel v. Papa, 36 A.D.3d 754, 829 N.Y.S.2d 569;  Baglio v. St. John's Queens Hosp., 303 A.D.2d 341, 342-343, 755 N.Y.S.2d 427).   Furthermore, the sanction of dismissal of a pleading may be imposed even absent willful and contumacious conduct if a party has been so prejudiced that dismissal is necessary as a matter of fundamental fairness (see Friel v. Papa, 36 A.D.3d at 755, 829 N.Y.S.2d 569;  Iannucci v. Rose, 8 A.D.3d 437, 438, 778 N.Y.S.2d 525;  Mylonas v. Town of Brookhaven, 305 A.D.2d 561, 563, 759 N.Y.S.2d 752).   Here, however, the plaintiffs failed to show that the appellant's alleged “daily sheet” for June 28, 2006, and the file referred to in the appellant's security log book entry on June 28, 2006, were central to their case, or that they were prejudiced by the purported loss of this evidence (see Friel v. Papa, 36 A.D.3d at 755, 829 N.Y.S.2d 569;  Deveau v. CF Galleria at White Plains, LP, 18 A.D.3d 695, 696, 796 N.Y.S.2d 119;  Klein v. Ford Motor Co., 303 A.D.2d 376, 377, 756 N.Y.S.2d 271).   Furthermore, the plaintiffs failed to demonstrate that the purported loss of the daily sheet and file was the result of intentional or negligent conduct on the appellant's part after it was placed on notice that this evidence might be needed for future litigation (see Dennis v. City of New York, 18 A.D.3d 599, 600, 795 N.Y.S.2d 615;  Goll v. American Broadcasting Cos., Inc., 10 A.D.3d 672, 673, 783 N.Y.S.2d 599;  Andretta v. Lenahan, 303 A.D.2d 527, 528, 756 N.Y.S.2d 454).