Caldwell v. 928 Gerard Avenue Partners, 57 Misc. 3d 857 (2017)

Where evidence is discarded during pending litigation, at a time when a defendant knew or should have known, even absent a specific demand by the plaintiff, that evidence would bear upon the parties’ dispute, sanctions are appropriate (see Sage Realty Corp. v Proskauer Rose, 275 AD2d 11 [1st Dept 2000]). As one court has observed “the lynchpin for spoliation sanctions under New York law ... is prejudice” (Fitzpatrick v Toy Indus. Assoc., Inc., 2009 NY Slip Op 30083[U], *16 [Sup Ct, NY County 2009]). The key issue when considering a spoliation sanction is often the degree of willfulness with respect to the refusal or failure to disclose information which ought to *862have been disclosed (Ferrara Bros. Bldg. Materials Corp. & Best Concrete Mix Corp. v FMC Constr. LLC, 54 Misc 3d 529, 534 [Sup Ct, Queens County 2016]). Here, the court credits neither defendant’s assertions that it sent multiple written demands to plaintiff to remove her property from storage, nor defendant’s assertions that plaintiff’s father requested to maintain only certain items. As a result, the court finds that defendant’s actions—which, at best, can be characterized as negligent—impeded (and nearly foreclosed) plaintiff from making her case. Relying on this finding, the court draws from defendant’s conduct a negative inference (see also Reichman v Warehouse One, 173 AD2d 250, 252 [1st Dept 1991] [“(a)n unfavorable inference may be drawn when, as in this case, a party fails to produce evidence which is within his (or her) control and which he (or she) is naturally expected to produce”]).