GHARTI v. 33 PLAZA LLC (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), dated January 8, 2025.  The order, insofar as appealed from, denied the plaintiff's motion pursuant to CPLR 3126 to strike the defendant's answer for spoliation of evidence.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In March 2015, the plaintiff allegedly was injured when he tripped and fell at a parking lot owned by the defendant.  In September 2016, the plaintiff commenced this action against the defendant to recover damages for personal injuries.  In June 2024, the plaintiff moved pursuant to CPLR 3126 to strike the defendant's answer as a sanction for spoliation of (i) insurance reports allegedly sent by the defendant's insurance company to the defendant recommending repairs to the subject parking lot from 2011 through March 2015;  (ii) purported records pertaining to repairs made to the subject parking lot from 2013 through March 2015;  (iii) purported surveillance video footage depicting the subject parking lot at the time of the plaintiff's accident;  and (iv) a purported incident report prepared by the defendant documenting the plaintiff's accident.  In an order dated January 8, 2025, the Supreme Court, inter alia, denied the plaintiff's motion.  The plaintiff appeals.

When a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126 (see Gordon v. Field, 234 AD3d 823, 824;  Van DeVeerdonk v North Westchester Restorative Therapy & Nursing Ctr., 223 AD3d 702, 703).  A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense (see Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d 543, 547;  Gordon v. Field, 234 AD3d at 824).  “ ‘The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence’ ” (Gordon v. Field, 234 AD3d at 824, quoting Van DeVeerdonk v North Westchester Restorative Therapy & Nursing Ctr., 223 AD3d at 703).

Here, the plaintiff failed to establish that the defendant intentionally or negligently failed to preserve the purported insurance reports or repair records pertaining to the subject parking lot, or that the defendant's failure to do so deprived him of the ability to prove his claim (see Washington v Church & Nostrand Apparel Corp., 238 AD3d 1096, 1098;  Lifrieri v. Gambale, 222 AD3d 860, 861).  Moreover, the plaintiff failed to establish that spoliation sanctions were warranted as to the purported surveillance video footage or the incident report, given the lack of concrete evidence that the plaintiff's accident was recorded by a surveillance camera, or that an incident report was prepared (see Blackstock v. AVR Crossroads, LLC, 211 AD3d 568;  Cuevas v. 1738 Assoc., LLC, 96 AD3d 637, 638).  Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motion pursuant to CPLR 3126 to strike the defendant's answer for spoliation of evidence.

The plaintiff's remaining contention is without merit.

CONNOLLY, J.P., CHRISTOPHER, VENTURA and GOLIA, JJ., concur.