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Missing document charge not granted
Evidence

Missing document charge not granted

By Jason Tenenbaum 8 min read

Key Takeaway

Court denies missing document charge when plaintiff fails to prove accident scene photographs existed or moved to compel their production during discovery.

This article is part of our ongoing evidence coverage, with 126 published articles analyzing evidence issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.

In personal injury litigation, parties often seek missing document charges when they believe the opposing side has failed to preserve or produce relevant evidence. These charges allow the jury to draw negative inferences against the party that failed to maintain important documents or evidence. However, obtaining such a charge requires more than mere speculation that documents might have existed.

The burden falls on the requesting party to establish two key elements: first, that the documents actually existed, and second, that proper discovery procedures were followed to obtain them. Courts are particularly careful about granting missing document charges because they can significantly impact jury deliberations and case outcomes.

This evidentiary standard applies across various types of documentation in personal injury cases, from business records to police reports. The discovery process provides specific mechanisms for compelling document production, and parties must utilize these procedures to preserve their right to seek missing document charges later at trial.

Jason Tenenbaum’s Analysis:

Knight v M & M Sanitation Corp., 2014 NY Slip Op 07631 (2d Dept. 2014)

This serious injury trial was problem for Plaintiff on may accounts. But there was discussion on a missing document charge for the failure to obtain photographs:

“Although there was testimony that McCarron took pictures at the accident scene with a disposable camera, the plaintiff failed to establish that any photographs of the accident scene existed, or that he moved to compel their production during discovery (see McGloin v Golbi, 49 AD3d 610; Crespo v New York City Hous. Auth., 222 AD2d 300).”

Key Takeaway

The court’s decision in Knight demonstrates that testimony alone suggesting someone took photographs is insufficient to warrant a missing document charge. Plaintiffs must affirmatively prove that specific documents existed and follow proper discovery procedures to compel their production. Without meeting these foundational requirements, courts will not allow juries to draw negative inferences against defendants for failing to preserve or produce evidence.

Legal Context

Why This Matters for Your Case

New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.

Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.

About This Topic

Evidentiary Issues in New York Litigation

The rules of evidence determine what information a court or arbitrator may consider in deciding a case. In New York no-fault and personal injury practice, evidentiary issues arise constantly — from the admissibility of business records and medical reports to the foundation requirements for expert testimony and the application of hearsay exceptions. These articles examine how New York courts apply evidentiary rules in insurance and injury litigation, with practical guidance for building admissible evidence at every stage of a case.

126 published articles in Evidence

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Common Questions

Frequently Asked Questions

What types of evidence are important in no-fault and personal injury cases?

Key types of evidence include medical records and bills, police accident reports, diagnostic imaging (MRI, X-ray, CT scans), expert medical opinions, business records from insurance companies and providers, witness statements, photographs of injuries and the accident scene, and employment records for lost wage claims. The rules of evidence under New York CPLR and the Evidence Rules govern what is admissible in court proceedings.

What is the business records exception to hearsay in New York?

Under CPLR 4518(a), a business record is admissible if it was made in the regular course of business, it was the regular course of business to make such a record, and the record was made at or near the time of the event recorded. This exception is crucial in no-fault litigation because insurers' denial letters, claim logs, and peer review reports are often offered as business records. The foundation for the business record must be established through testimony or a certification.

What role does diagnostic imaging play as evidence in injury cases?

Diagnostic imaging — MRIs, CT scans, X-rays, and EMG/NCV studies — provides objective evidence of injuries such as herniated discs, fractures, ligament tears, and nerve damage. Courts and arbitrators give significant weight to imaging evidence because it is less subjective than physical examination findings. In serious injury threshold cases under §5102(d), imaging evidence corroborating clinical findings strengthens the plaintiff's case considerably.

How do New York courts handle surveillance evidence in personal injury cases?

Insurance companies frequently hire investigators to conduct video surveillance of plaintiffs to challenge injury claims. Under CPLR 3101(i), a party must disclose surveillance materials prior to trial, including films, photographs, and videotapes. Surveillance evidence can be powerful for impeachment if it contradicts the plaintiff's testimony about limitations. However, courts may preclude surveillance that was not properly disclosed or that is misleadingly edited.

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Attorney Jason Tenenbaum

About the Author

Jason Tenenbaum, Esq.

Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.

Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.

24+ years in practice 1,000+ appeals written 100K+ no-fault cases $100M+ recovered

Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.

New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.

If you need legal help with a evidence matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.

Filed under: Evidence
Jason Tenenbaum, Personal Injury Attorney serving Long Island, Nassau County and Suffolk County

About the Author

Jason Tenenbaum

Jason Tenenbaum is a personal injury attorney serving Long Island, Nassau & Suffolk Counties, and New York City. Admitted to practice in NY, NJ, FL, TX, GA, MI, and Federal courts, Jason is one of the few attorneys who writes his own appeals and tries his own cases. Since 2002, he has authored over 2,353 articles on no-fault insurance law, personal injury, and employment law — a resource other attorneys rely on to stay current on New York appellate decisions.

Education
Syracuse University College of Law
Experience
24+ Years
Articles
2,353+ Published
Licensed In
7 States + Federal

Legal Resources

Understanding New York Evidence Law

New York has a unique legal landscape that affects how evidence cases are litigated and resolved. The state's court system includes the Civil Court (for claims up to $25,000), the Supreme Court (the primary trial court for unlimited jurisdiction), the Appellate Term (which hears appeals from lower courts), the Appellate Division (divided into four Departments, with the Second Department covering Long Island, Brooklyn, Queens, Staten Island, and several upstate counties), and the Court of Appeals (the state's highest court). Each court has its own procedural requirements, local rules, and case-assignment practices that can significantly impact the outcome of your case.

For evidence matters on Long Island, cases are typically filed in Nassau County Supreme Court (at the courthouse in Mineola) or Suffolk County Supreme Court (in Riverhead). No-fault arbitrations are heard through the American Arbitration Association, which assigns arbitrators throughout the metropolitan area. Workers' compensation claims go to the Workers' Compensation Board, with hearings at district offices across the state. Understanding which forum is appropriate for your case — and the specific procedural rules that apply — is essential for a successful outcome.

The procedural landscape in New York also includes important timing requirements that can affect your case. Most civil actions are subject to statutes of limitations ranging from one year (for intentional torts and claims against municipalities) to six years (for contract actions). Personal injury cases generally have a three-year deadline under CPLR 214(5), while medical malpractice claims must be filed within two and a half years under CPLR 214-a. No-fault insurance claims have their own regulatory deadlines, including 30-day filing requirements for applications and 45-day deadlines for provider claims. Understanding and complying with these deadlines is critical — missing a filing deadline can permanently bar your claim, regardless of how strong your case may be on the merits.

Attorney Jason Tenenbaum regularly practices in all of these venues. His office at 326 Walt Whitman Road, Suite C, Huntington Station, NY 11746, is centrally located on Long Island, providing convenient access to courts and offices throughout Nassau County, Suffolk County, and New York City. Whether you need representation in a no-fault arbitration, a personal injury trial, an employment discrimination hearing, or an appeal to the Appellate Division, the Law Office of Jason Tenenbaum, P.C. brings $24+ years of real courtroom experience to your case. If you have questions about the legal issues discussed in this article, call (516) 750-0595 for a free, no-obligation consultation.

New York's substantive law also presents distinct challenges. In motor vehicle cases, the no-fault system under Insurance Law Article 51 provides first-party benefits regardless of fault, but limits the right to sue for non-economic damages unless the plaintiff establishes a "serious injury" under one of nine statutory categories. This threshold — codified at Insurance Law Section 5102(d) — requires medical evidence showing more than a minor or subjective injury, and courts have developed detailed standards for each category. Fractures must be documented through imaging studies. Claims of permanent consequential limitation or significant limitation of use require quantified range-of-motion testing with comparison to norms. The 90/180-day category demands proof that the plaintiff was unable to perform substantially all of their usual daily activities for at least 90 of the 180 days following the accident.

In employment discrimination cases, the legal standards vary depending on whether the claim arises under state or local law. The New York State Human Rights Law employs a burden-shifting framework: the plaintiff must first establish a prima facie case by showing membership in a protected class, qualification for the position, an adverse employment action, and circumstances giving rise to an inference of discrimination. The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for its decision. If the employer meets this burden, the plaintiff must demonstrate that the stated reason is pretextual. The New York City Human Rights Law, by contrast, applies a broader standard, asking whether the plaintiff was treated less well than other employees because of a protected characteristic.

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