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Spoliation is the destruction of evidence whether intentional or by accident. (FOR EDUCATIONAL PURPOSE ONLY …NOT TO BE USED IN LITIGATION)

Spoliation is the destruction of evidence whether intentional or by accident. … Sanctions for spoliation are appropriate ‘where a litigant, intentionally or negligently, disposes of crucial items of evidence involved in an accident before the adversary has had an opportunity to inspect them.’  Dismissal of an action, or the striking of pleadings, while severe, is an appropriate remedy when the evidence spoiled is a ‘key piece of evidence’, (emphasis added) whose destruction precludes inspection by an adverse party.  In determining the severity of the spoliation sanction, it is important to ascertain what prejudice if any the party seeking the sanction has incurred by the absence of the spoiled evidence.  . . . [I]n cases where the spoiled evidence is not crucial to a litigant’s case, such that its absence does not prevent the outright prosecution or defense of a case, preclusion of evidence, rather than outright dismissal of pleadings, is the preferred remedy (Shea v. Spellman, 2004 NY Slip Op 50785U, [Sup Ct, Bronx County 2004][internal citations omitted]).

The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and “fatally compromised its ability to defend (the) action’ (Utica Mutual Insurance Company v. Berkoski Oil Company, supra  at 718 , quoting  Lawson v. Aspen Ford, Inc. 15 A.D.3d 628, 629, 7912d 119 (2d Dept. , 2005), and citing  Kirschen v. Marino,  16 A.D.3d 555, (2dDept., 2005)). “The Court ‘may, under appropriate circumstances, impose sanction even if the destruction occurred through negligence rather than willfulness, and even if the evidence was destroyed before the spoliator became a party, provided (the party)…. . was on notice that the evidence might be needed for future litigation ‘” (Kovit v. CVS, 14 Misc.3d l21O(A), 2006 WL 3833653 (Supreme Cour, Nassau County 2006), quoting Iannucciv. Rose 8 A.D.3d437, 778 N. 2d 525 (2dDept. , 2004), quoting  DiDomenico v.  C &  SAeromatikSupplies 252A. 2d4l, 682N. 2d452 (2dDept., 1998), and citing Favish v. Tepler 294 A. 2d 396, 741 N. 2d 910 (2d Dept. , 2002) and  Baglio v. St. John s Queens Hosp. 303 A. 2d 341 , 755 N. 2d 427 (2d Dept., 2003).


When a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible par may be sanctioned by the striking of its pleading. Utica MutualInsurance Company v. Berkoski Oil Company,  58 A.D.3d 717, 872 N. 2d 166 (2d Dept., 2009), quoting  Denoyelles v. Gallagher, 40 A.D.3d 1027, 834 N. 2d 868 (2d Dept., 2007).   “If the Court in its analysis concludes that because of the spoiled evidence one party has destroyed critical physical proof, such that its opponents are ‘prejudicially bereft of appropriate means to [either present or] confront a claim with incisive evidence’, the spoliator’s pleading is properly stricken in Order to obviate a trial that is ‘based on rank swearing contests” (emphasis added) (Id.) (Citations omitted).  While a spoliator of key evidence can be  punished by the striking of its pleading, the court must determine whether such a drastic remedy is necessary as a matter of fundamental fairness, or whether a less drastic sanction is appropriate (Iannucci v. Rose, 8 AD3d 437 [2d Dept 2004]).

The main question that must be answered in order to determine whether spoliation sanctions are appropriate is whether the alleged spoliator was on notice of the litigation at the time of the destruction of the evidence (Hennessy v. Restaurant Associates, Inc., 25 AD3d 340 [1st  Dept 2006]; Montiero v. R.D. Werner Co.. Inc., 301 AD2d 636 [3d Dept 2003)  Such notice creates a duty to preserve the evidence. (Id.).

ATTORNEY ADVERTISING: Information herein and is not intended to be, legal advice. This sample legal document is provided as part of a free public educational service by Zachary Irtaza Riyaz, Esq., attorney at law in the State of New York (Westhampton – Tel. 516-234-0348), for reference only. IT IS NOT INTENDED TO GIVE LEGAL ADVICE ABOUT A SPECIFIC LEGAL PROBLEM, NOR DOES IT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. Due to the importance of the individual facts of every case, the generalizations I make may not necessarily be applicable to any particular case. Statutes and codes such as Domestic Relations Law (DRL)are frequently amended and may affect the validity of the above legal document and no representation is made that the above sample is going to be enforceable in the future. Changes in the law could at any time make parts of this web site content obsolete. Updated statutes and codes may be available at the New York State Legislature Website. No statute or sample legal document should be relied on without understanding controlling case law which may further interpret it. THIS INFORMATION IS PROVIDED WITH THE UNDERSTANDING THAT IF LEGAL ADVICE IS REQUIRED THE SERVICES OF A COMPETENT ATTORNEY SHOULD BE CONSULTED.