Lentz v. Nic's Gym, Inc.

The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence (see Iannucci v Rose, 8 AD3d 437, 438 [2004]). “It 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 [the spoliator] was on notice that the evidence might be needed for future litigation’ ” (id. at 438, quoting 619 DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, 53 [1998]; see Favish v Tepler, 294 AD2d 396 [2002]). Here, given the defendant’s failure to produce the physical evidence in question, the Supreme Court providently exercised its discretion in determining that an adverse inference charge and a reimbursement of the costs of an October 2008 site inspection by the plaintiffs expert were appropriate sanctions (see Yechieli v Glissen Chem. Co., Inc., 40 AD3d 988, 989 [2007]; Molinari v Smith, 39 AD3d 607, 608 [2007]; Ifraimov v Phoenix Indus. Gas, 4 AD3d 332, 334 [2004]; see also De Los Santos v Polanco, 21 AD3d 397, 397-398 [2005]). Rivera, J.E, Dickerson, Eng and Roman, JJ., concur.