Doris Ortiz, appellant, v. Bajwa Development Corp., etc., defendant, Imtiaz Donut Corp., respondent.

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

Doris Ortiz, appellant, v. Bajwa Development Corp., etc., defendant, Imtiaz Donut Corp., respondent.

2011–04801 (Index No. 27490/06)

Decided: November 22, 2011

MARK C. DILLON, J.P. THOMAS A. DICKERSON JOHN M. LEVENTHAL LEONARD B. AUSTIN ROBERT J. MILLER, JJ. Palmeri & Gaven, New York, N.Y. (John J. Palmeri of counsel), for appellant. Farber Brocks & Zane, Mineola, N.Y. (Andrew J. Mihalick of counsel), for respondent.

Submitted—November 9, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated March 25, 2011, as denied her motion pursuant to CPLR 3126 to strike the answer of the defendant Imtiaz Donut Corp.

ORDERED that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, the plaintiff's motion is granted only to the extent of precluding the defendant Imtiaz Donut Corp. from offering any testimony at trial from its employees whose names and addresses were lost, and the plaintiff's motion is otherwise denied.

“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 “ (Holland v. W.M. Realty Mgt., Inc., 64 AD3d 627, 629;  see Baglio v. St. John's Queens Hosp., 303 A.D.2d 341, 342).   The court may, under appropriate circumstances, impose a sanction “even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided it was on notice that the evidence might be needed for future litigation” (DiDomenico v. C & S Aeromatik Supplies, 252 A.D.2d 41, 53;  see Iannucci v. Rose, 8 AD3d 437, 438;  Baglio v. St. John's Queens Hosp., 303 A.D.2d at 342).

The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for the spoliation of evidence (see Iannucci v. Rose, 8 AD3d at 438;  Allstate Ins. Co. v. Kearns, 309 A.D.2d 776;  Puccia v. Farley, 261 A.D.2d 83, 85).  “We should substitute our judgment for that of the Supreme Court only if its discretion was exercised improvidently” (Holland v. W.M. Realty Mgt., Inc., 64 AD3d at 629).

The President of the defendant Imtiaz Donut Corp. (hereinafter the defendant) discarded the defendant's business records after he had notice of the plaintiff's lawsuit against the owner of the premises where the accident occurred and when it should have been obvious that the plaintiff would also assert a claim against the defendant, a tenant of the subject premises (see Erdely v. Access Direct Sys., Inc., 45 AD3d 724, 726–727).   However, both the plaintiff and the defendant are equally affected by the loss of the records of the names and addresses of the defendant's employees who were at work on the day of the accident, and neither has reaped an unfair advantage in the litigation (see De Los Santos v. Polanco, 21 AD3d 397, 398;  Lawson v. Aspen Ford, Inc., 15 AD3d 628, 629–630;  Ifraimov v. Phoenix Indus.   Gas, 4 AD3d 332, 334).   Accordingly, under the circumstances, the court should have granted the plaintiff's motion pursuant to CPLR 3126, but only to the extent of precluding the defendant from offering any testimony at trial from its employees whose names and addresses were lost.

The plaintiff's remaining contention is without merit.

DILLON, J.P., DICKERSON, LEVENTHAL, AUSTIN and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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