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Unintentional spoliation leads to adverse inference chargeApril 6, 2010

Seda v Epstein, 2010 NY Slip Op 02850 (1st Dept. 2010)

“There is no evidence that defendants’ removal of the debris was willful; indeed, the preliminary conference order merely stated that defendants were to make the premises available for inspection, and plaintiff did not [*2]schedule an inspection for more than two years (see e.g. Jimenez v Weiner, 8 AD3d 133 [2004]). However, in view of defendants’ failure to notify plaintiff’s counsel of the intended removal, the court properly ordered the lesser sanction of an adverse inference charge (see e.g. Balaskonis v HRH Constr. Corp., 1 AD3d 120, 121 [2003]).”

I am not sure when in no-fault practice this particular issue would arise.  It is something to keep in mind if you are fighting a contested  issue where substantive discovery has been ordered and the items you seek to discover suddenly “vanish”.

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