Peskanov Defeats Plaintiff’s Spoliation Motion in Trial Court and Again on Appeal

The New York Appellate Division, First Department, has unanimously affirmed a trial court order denying plaintiff’s motion to strike defendants answer, or in the alternative, for an adverse inference charge based on alleged  spoliation of evidence.

Facts

On November 10, 2021, the plaintiff was soldering his cousin’s leaky water heater tank pipe when a metal fragment flew into his eye. At the time, the plaintiff was renovating his cousin’s house, and his intention was to replace the water heater tank after the leaky pipe was repaired.  The plaintiff’s cousin drove the plaintiff to the hospital and to 5-6 subsequent medical appointments. 

On January 10, 2022, two months after the accident, the plaintiff went back to his cousin’s house and helped remove and replace the water heater tank and pipe. The plaintiff testified that he moved the tank/pipe with his cousin to the garage, but his cousin testified that they were put outside to be collected by a scrap metal company. On February 9, 2022, the plaintiff left voicemails on his cousin’s phone, demanding payment for the accident. The plaintiff then contacted an attorney, who served a notice to preserve evidence upon the plaintiff’s cousin on February 18, 2022. After the plaintiff commenced his lawsuit on March 7, 2022, he moved to strike his cousin’s Answer for failing to preserve the tank/pipe.    

Analysis

Clausen Miller partner David A. Peskanov argued that the plaintiff was not entitled to spoliation sanctions since, at the time the water heater tank and pipe were discarded, the plaintiff’s cousin had no reason to believe the plaintiff would commence a lawsuit or that the tank and pipe had evidentiary value. The motion court agreed and denied the plaintiff’s motion since the plaintiff helped remove the tank/pipe without notifying his cousin about his future lawsuit or asking him to preserve the tank/pipe.  

On appeal, the plaintiff argued that his cousin anticipated litigation at the time of the disposal because his cousin had already retained an attorney.  Although the plaintiff’s cousin gave conflicting deposition testimony about the date of disposal, the appellate court determined there is no evidence that shows the plaintiff’s cousin retained an attorney before the disposal. The plaintiff testified that he helped discard the tank/pipe on January 10, 2022, and the plaintiff’s cousin testified in his affidavit that the tank/pipe were picked up by a scrap metal company 2-3 days later. The plaintiff’s cousin further testified in his affidavit that he did not contact an attorney until after February 9, 2022 (nearly a month later), when the plaintiff left voicemails on his phone demanding payment.

The Appellate Court affirmed the trial court’s decision, holding that the plaintiff did not present any evidence that his cousin reasonably anticipated litigation before January 10, 2022.