: No. KK1_R{afYM D_x@@
qPP@iR. In addition, Format's assertion in this regard is [*3]not supported by an affidavit from a party with knowledge, but, rather, stands as a mere conclusory assertion made by Format's counsel. el?:tRlE`m +GEV8Nd_@W.\6@)?&GO "The nature and severity of the sanction depends upon a number of factors, including, but not limited to, the knowledge and intent of the spoliator, the existence of proof of an explanation for the loss of the evidence, and the degree of prejudice to the opposing party" (Samaroo v Bogopa Serv. Thereafter, on or about June 13, 2017, the moving defendants served a Notice of Discovery and Inspection on Format demanding, among other things, an inspection of all items of personal property, inventory, or stock alleged to have been damaged and all documents or information regarding the disposition of such items that were no longer in Format's possession (see Notice of Discovery and Inspection at 1-2, NYSCEF Doc. ;gq9h0Tp0fd@QEMN, 208). Here, the absence of the disposed-of furniture is not fatal to the moving defendants' ability to present a defense. Decided on August 12, 2020
Format Furniture Inc. v HARTZELL
No. Format claims that, while counsel for the moving defendants may not have inspected the damaged furniture, the moving defendants themselves were on site, and had numerous opportunities to do so, from the time of the leaks through the time of the remediation process. The court has "broad discretion to provide proportionate relief to the party deprived of the lost evidence, such as precluding proof favorable to the spoliator to restore balance to the litigation . Instead, it supplied spreadsheets, presumably created by Format itself, alleging damages to Format's inventory in the amount of $833,408.04 arising out of the February 2016 leak and in the amount of $467,658.32 arising out of the April 2016 leak (Spreadsheets, NYSCEF Doc. The moving defendants argue that Format should not be permitted to belatedly offer an inspection after destroying almost a quarter of the damaged inventory. 234-238). Format alleges that on those dates pipes burst in the building, causing large volumes of water to escape the plumbing system, which resulted in significant water damage to its showroom, retail space, and inventory. 202; Plaintiff's Response to Moving Defendants' Notice of Discover and Inspection, NYSCEF Doc. Format asserts that the moving defendants also fail to show that the sale of the subject furniture stripped them of their ability to mount a defense. They contend that Format sold the damaged furniture before they were able to inspect it. Published by New York State Law Reporting Bureau pursuant to Judiciary Law 431. "Generally, dismissal of the complaint is warranted only where the spoliated evidence constitutes the sole means by which the defendant can establish its defense, or where the defense was otherwise fatally compromised or defendant is rendered prejudicially bereft of its ability to defend as a result of the spoliation" (Arbor Realty Funding, LLC v Herrick, Feinstein LLP, 140 AD3d 607, 609-610 [1st Dept 2016] [internal quotation marks and citations omitted]; see Brook [*4]v Peconic Bay Med. "Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126" (Delmur, Inc. v School Constr. TcnhC [rG/|AK tX/\'z*I$RbFj2FH\[{t^Nc%X2 XI#GH:+TB88=fN^ *WM6-qsG vz,NA:}D|eEN&ml&T3N$}9Xk] Reed, J. According to the moving defendants, an inspection of the damaged property never took place, and Format later revealed that, between July 20, 2017 and July 10, 2018, it sold over $250,000.00 worth of furniture alleged to have been damaged by the leaks (Invoices, NYSCEF Doc. OU+V"[MdZo/GNI-C=X&nHpwdR5sGYD ~m|dRT =6hB>
krthsL'zmBqmf>S'T/ey$ah7P1\F`kv@urP5sdqGqdcUvX_`qsMD?.>c? T|.GfI/-?8PRF'ypFI&V38FzIr1~TX>'c=]k;cXd$LpQ04Y*Xx08;\F) . Q%xf?O-(>
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9(1^cgiu_m4ahX74B9urS"QVc17}_wUrd/j6N(6p.[}"hW\e"OIM:? The moving defendants assert that Format's failure to preserve this evidence, which appears to comprise 20% of the property alleged to have been damaged, prejudiced their ability to establish a defense. Format asserts that it had to take every opportunity to mitigate its own damages, dispose of the damaged items, liquidate if possible, and try to minimize its losses. Nos. "In deciding whether to impose sanctions, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness" (Duluc v AC & L Food Corp., 119 AD3d at 451-452). No. /5&9+%=0$@3~;"eQ"s7n$>?m(VyjB.> PGLSZr:K{5 ?4tyn)=K Format also maintains that the moving defendants never responded to, or scheduled, an inspection despite multiple e-mail invitations to visit the site (e-mails [dated 6/7/2019, 7/30/2019, 8/21/2019, 12/13/2019, 12/8/2019], NYSCEF Doc. No. This opinion is uncorrected and will not be published in the printed Official Reports. Under these circumstances, striking Format's pleading is not warranted. 2020 NY Slip Op 50926(U)
`#7*w OsEs)n]mM7yUJY)/+yev:j
m=%6/"+`gG+x0%^OS |xuj9yGH]"q&w\lhn'\Y]w}5jP.bQBPU4X+0Q=|g'E`,s] +_@JQE*9Pj/[\@VN_kG\*w&tGe%DuKlkwiOga^p0yynle-q{yN`ZiV~}1'vu7b#^zxQ[?wK'tvFOQ`H{::yAv9}3ehz{+'I8D#7ct']g`Kh@8a6'6obZ=FP_f3*yZL0vOnJ%*H`?5WS[' 207). The furniture presented a health hazard and was disposed of with the moving defendants' knowledge, as part of the mold removal and remediation process coordinated by them, during which Format was forced to vacate the premises. 206). . [*1]
jydouy039'mD-X +He=8 y1[. Supreme Court, New York County
Subscribe to Justia's Free Newsletters featuring summaries of federal and state court opinions. Indeed, as Format points out, the furniture is not the instrumentality of the loss and does not constitute evidence pertaining to the manner in which the loss occurred. >K*5R{L4
rTO3$TpDP;1M&w ur?x'&CR29 217). Rather, the lesser sanction of an adverse inference charge at trial with respect to the disposed-of furniture is appropriate (see Minaya v Duane Reade Intl., Inc., 66 AD3d 402, 403 [1st Dept 2009]; Metropolitan NY Coordinating Council on Jewish Poverty v FGP Bush Term., Inc., 1 AD3d 168, 168 [1st Dept 2003]). As such, they assert, Format's complaint should be stricken as a sanction for its spoliation of this evidence. WE{@e:jJ&K6Gq/X[K(7X)N-0{(/*9%{9V0xy3
CJ |.#L_$:7j*6\9{CS*xK^2nqYVV#)=;v) Format commenced this action in September 2016 to recover damages for injury to its property caused by two separate water leaks that occurred at the condo building on February 16, 2016 and April 17, 2016. In opposition to the motion, Format does not dispute that it intentionally sold some of the damaged furniture. ;O?\+ (x{?ixSs{'{>"U0oXf#$o=p|'!3_ho`!eP^8=yt2|Ewiwhh Y,;y)BlL$ h~ !E.x)`DN q
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~qa9^w~7ims#5'"xSW#$P`#MiI Auth., 174 AD3d 784, 786 [2d Dept 2019] [internal quotation marks and citations omitted]). or employing an adverse inference instruction at the trial of the action" (Ortega v City of New York, 9 NY3d 69, 76 [2007]; see Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d at 551). No. Format points out in this regard that the items disposed of were not the instrumentality of the loss or crucial evidence pertaining to the manner in which the loss occurred. ORDERED that the motion by defendants/third-party plaintiffs/fourth third-party plaintiffs the Andrews Organization, Inc. and Susan B. Daimler, as Board President of the Wooster Street Condominium, is granted to the extent that an adverse inference charge shall be permitted at the time of trial in connection with the disposed-of furniture. w]Iz2y)\e[Byl Q|L|3@IyHf!u~[]es{D6 Xe$6@elUaQQSQ>H#C d 9tiuhZG`NDZ6.ce)jZDzxy3,z] 7~{ xLn Andrews, the managing agent for the condo building, and Daimler, the condo board's president (together, the moving defendants), now move to strike the complaint, or, in the alternative, to impose other sanctions against Format for spoliation of some of the furniture claimed to have been damaged as a result of the leaks. However, the moving defendants assert, Format failed to disclose any meaningful information related to the damaged property, such as receipts or invoices. On or about August 11, 2017, Format responded, stating that, upon proper notice, those items remaining in Format's possession would be made available for inspection, that any documents related to the disposition of items no longer in its possession were already provided, and that, to the extent any additional documents were located, same would be provided (see Plaintiff's Response to Notice of [*2]Discovery and Inspection at p 4, NYSCEF Doc. The moving defendants also dispute Format's contention that they failed to respond to its offers to inspect the premises. (jh9^nbv@}V8+_PRTNn/l
,)`^ RS*J bIB$!E22k4yMIq&n>FcX14Z}j/%%fboX^)Z_#UZm!FhED\f From the outset, Format contends, there was always an expectation that the damaged items would be disposed of, whether by way of trash or attempted liquidation inasmuch as Format is a retail establishment and could not store moldy damaged furniture in its showroom for years. zV0xOfnmY'Kivm;I{g$@2P2}37s71O2U N,)VZUjzgsk,=?o4NgYyt.(v:z$w~['re'w47/j=i{*$=n|iY^%'=K|k/p[GZ}fr/okeXs2tO#oxa np6,s
hgaoDNM,? AQ. It claims that it needed to do so because it was unworkable to store thousands of square feet of damaged, wet, and moldy inventory. This constitutes the decision and order of the court. *2%`O,X`6ZtmZ`+4[ZM&r1S+`Ke|k'1%`8"ap
ba3"+G'n:&g4ratBw9]BAg ?(5eg0qh.EX5%Im:N($t6>6 9 ~$Fp"Gmv w"vWr~I:]DltY~{g~|5Y Zp ao%rp9A#A)+SapBQMt"xkb&2~:83*MPb*RpplZL(",L~+N>5c(@"8@e(a ~g4LBC;h;095ah0'} Y++)b|OuSXrhqx;K2ZP M$WY_paXp?Bkz q`NtXOHS&D(0`GE>r }/XaVjv "[O]utright dismissal remains a drastic remedy and is appropriate only where less severe sanctions have been ruled out" (Tommy Hilfiger, USA, Inc. v Commonwealth Trucking, Inc., 300 AD2d 58, 60 [1st Dept 2002]; see N. H. R. v Deer Park Union Free Sch. The moving defendants assert that initially, in response to their combined demands, Format produced photographs and documents related to the damages it sustained as a result of the leaks (see Affirmation in Support at 9, NYSCEF Doc. In reply, the moving defendants contend that Format's assertion that they were afforded the opportunity to inspect the damaged furniture before it was disposed of is wholly incorrect inasmuch as they had no prior right of entry into the premises because Format's lease was with the condo sponsor, not the moving defendants. "Spoliation sanctions are not limited to cases where the evidence was destroyed willfully or in bad faith, since a party's negligent loss of evidence can be just as fatal to the other party's ability to present a defense" (Alphas v Smith, 170 AD3d 529, 530 [1st Dept 2019][internal quotation marks and citation omitted]). Corp., 106 AD3d 713, 714 [2d Dept 2013]). Ctr., 172 AD3d 468, 470 [1st Dept 2019]). Dist., 180 AD3d 823, 824 [2d Dept 2020]["[A] less severe sanction or no sanction is appropriate where the missing evidence does not deprive the moving party of the ability to establish his or her case"] [internal quotation marks and citation omitted]). /
raV;'`)pi#jw}7~~|vior p,"GHpM"2?WjQ |uL|"J=xu0Y!,zEH4fGKMh1 r2!oeuL The following e-filed documents, listed by NYSCEF document number (Motion 005) 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 242, 257, 258 were read on this motion to STRIKE PLEADINGS. Format, a high-end furniture showroom and retail store, is the sub-tenant of a commercial unit on the ground level and cellar floor of a mixed-used condominium building located at 42-50 Wooster Street, in New York, New York (the condo building). Moreover, the moving defendants admittedly have a full inventory of the damaged property and thousands of photographs to substantiate the damages. Format emphasizes that its preference would have been to retain all of the damaged items so as to be able to present them at trial, but that such an undertaking was neither realistic nor practicable without an enormous expense and burden. Furthermore, they assert that it is unclear whether Format has sold or destroyed additional inventory or property. 4an3s7NlagO m"*
jM|"/>86ivyk1uFQ(lhR)`(> The moving defendants argue that, given the fact that Format destroyed the evidence after it was served with the June 17, 2017 Notice of Discovery and Inspection and before they were able to inspect it, the court should strike Format's complaint. 0NA%MNT No. They assert that this contention is incorrect and that the emails set forth by Format are dated two years after the time in which their initial request to inspect the furniture was made, and two years after 20% percent of the property was destroyed, sold, or otherwise disposed of. u_w, ->84+N0W.$P\p3Wf%%p\`j{,dau'AM, J 82>_)B)$sEQ!id}T0c{AS9|tn9:NK=m7BPiS? In addition, Format explains that it was unfeasible for it to store the damaged furniture and the moving defendants acknowledge that Format provided them with photographs and documents related to the damages it sustained. In this action to recover damages for injury to property, defendants/third-party plaintiffs/fourth third-party plaintiffs the Andrews Organization, Inc. (Andrews) and Susan B. Daimler, as Board President of the Wooster Street Condominium (Daimler), move, pursuant to CPLR 3126, to strike the complaint, or, in the alternative, to impose other sanctions against plaintiff Format Furniture Inc. (Format) for spoliation of evidence (motion sequence number 005). It was forced to sell the damaged items at extremely low prices, Format adds, because it did not have the income to store the damaged items any longer. They assert that Format should not be afforded the benefit of being able to draft its own spreadsheets claiming an unverified value as to each piece of inventory and thereafter sell or destroy items at its discretion during the pendency of this suit and in contravention of its obligations pursuant to the pending demands to inspect the damaged property. yFvvZX;S(a7;7e 209).
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