The prosecution or defense of an action may be greatly hampered by the loss or destruction of crucial evidence. When this occurs, the parties must look to the courts for appropriate relief. Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned. There may be circumstances where the destruction is so egregious that the sanction may be punitive. A pleading may be stricken where there is no lesser redress that will achieve fundamental fairness.

Generally, however, the remedy directed by the court is intended to ensure that the aggrieved party is not unfairly disadvantaged in proving its case or defending its actions. The court may impose sanctions even if the destruction of key evidence occurred through negligence rather than wilfulness to address the prejudice to the adversarial party. Sanctions may be appropriate even if the evidence was destroyed before the spoliator became a party, provided that it was on notice that the evidence might be needed for future litigation.

Judicial Discretion

Judicial intervention is essential where a party’s case is irreparably damaged by the loss of necessary evidence. CPLR 3126 conveys broad discretion to the courts to address these issues, as well as other discovery infractions, such as the refusal to obey an order for disclosure or the willful failure to disclose information that should have been disclosed. The remedies may range from an adverse inference charge at trial, to preclusion of evidence, to the drastic remedy of striking the pleading.1

New York does not recognize an independent tort claim for third-party negligent spoliation of evidence. In Ortega v. City of New York, 9 N.Y.3d 69, 845 N.Y.S.2d 773 (2007), the Court of Appeals declined to impose liability for spoliation on nonparty City of New York for destroying an impounded vehicle which was intrinsic to identifying the cause of a vehicular fire and should have been preserved. The court conceded that the city’s violation of a preservation order interfered with an interest worthy of protection. However, it recognized that there are unfortunate instances where third parties with a duty to preserve evidence but without connection or ties to the underlying litigation will breach that duty.

It noted that there are other remedies under such circumstances, such as contempt proceedings for monetary damages to reimburse for additional investigation and research. However, the court stated that an independent cause of action for spoliation is not viable as it would recognize a claim that, by definition, could not be proved without resort to speculation. It explained that because the content of the spoliated evidence was unknown, “there is no way of ascertaining to what extent the proof would have benefitted either the plaintiff or defendant in the underlying lawsuit and it is therefore impossible to identify which party, if any, was actually harmed.”

Although the court in Ortega declined to recognize a cognizable claim for negligent spoliation against a nonparty, it reiterated the broad discretionary power of the courts to address spoliation by the parties to the litigation under CPLR 3126. The court stated:

New York courts therefore possess broad discretion to provide proportionate relief to the party deprived of the lost evidence, such as precluding proof favorable to the spoliator to restore balance to the litigation, requiring the spoliator to pay costs to the injured party associated with the development of replacement evidence, or employing an adverse inference instruction at the trial of the action… Where appropriate, a court can impose the ultimate sanction of dismissing the action or striking responsive pleadings, thereby rendering a judgment by default against the offending party.


Clearly, the most drastic sanction available to the courts is to strike the offending party’s pleading. The courts have most often shown a willingness to impose this harsh remedy where a party intentionally destroyed key evidence which deprived its adversary of the ability to prove its claim or defense. For example, in New York Central Mutual Fire Insurance Company v. Turnerson’s Electric Inc., 280 A.D.2d 652, 721 N.Y.S.2d 92 (2d Dept. 2001), plaintiff intentionally ordered the destruction of a circuit panel in the course of gathering evidence for a potential subrogation action. Defendants demonstrated that they were prejudiced by the destruction of this key item of physical evidence. Under these circumstances, the court held that defendants were entitled to dismissal of the complaint.

In DiDomenico v. C&N Aromatik Supplies Inc., 252 A.D.2d 41, 682 N.Y.S.2d 452 (2d Dept. 1998), a party defendant destroyed key evidence and deliberately failed to produce its records until all of the corporate defendants had destroyed their internal documents in accordance with routine retention schedules. The spoliation of all physical evidence left plaintiff without the means of proving his case and co-defendant unable to properly defend itself. The court held that the party’s answer should be stricken for this willful spoliation. The court established that a pleading may be stricken “even if the evidence was destroyed before the spoliator became a party, provided it was on notice that the evidence might be needed for future litigation.”

In Sage Realty Corp. v. Proskauer Rose LLP, 275 A.D.2d 11, 713 N.Y.S.2d 155 (1st Dept. 2000), plaintiff destroyed tape recordings which were potential evidence in a legal malpractice action. The court held that the destruction was done in bad faith and dismissed the action. The deliberate and willful nature of plaintiff’s conduct effectively impeded the ability of the adversarial party to assert a claim or defense.

The courts have often imposed sanctions where a litigant, either intentionally or negligently, disposes of crucial items of evidence germane to an accident before the adversary has had an opportunity to inspect them. For example, in Kirkland v. New York City Housing Authority, 236 A.D.2d 170, 666 N.Y.S.2d 609 (1st Dept. 1997), plaintiff’s decedent was killed in a fire allegedly caused by a defective stove. The stove, which was in defendant’s possession, was destroyed prior to the commencement of a third-party action six years after commencement of the lawsuit. The court dismissed the third-party complaint holding that the third-party defendant, through no fault of its own, had been deprived of an ability to present a defense as a result of the destruction of the stove.

Sanctions for spoliation are not limited to the willful destruction of evidence. A party’s negligent loss of evidence prior to examination by the other side can be just as fatal to the other party’s ability to present a defense. In Squitieri v. City of New York, 248 A.D.2d 201, 669 N.Y.S.2d 589 (1st Dept. 1998), the city disposed of a defective street sweeper prior to the commencement of a third-party action. The court dismissed the third-party complaint. In cases such as these where the pleading was stricken or the complaint dismissed, the level of prejudice was severe.


The courts generally evaluate the prejudice to the other party caused by the spoliation, even if it was negligent, in determining what type of sanction is warranted as a matter of “fundamental fairness.” In Baglio v. St. John’s Queens Hosp., 303 A.D.2d 341, 755 N.Y.S.2d 427 (2d Dept. 2003), the court held that the hospital’s negligent loss of the fetal monitoring strips warranted striking its answer. The strips would have given fairly conclusive evidence as to the presence or absence of fetal distress, and their loss deprived the plaintiff of the means of proving her medical malpractice claim.

However, not all cases demand the drastic remedy of striking the pleading. In Gotto v. Eusebe-Carter, 69 A.D.3d 566, 892 N.Y.S.2d 191 (2d Dept. 2010), the basic facts were similar to those in Baglio. However, plaintiff failed to clearly establish that the hospital negligently lost or intentionally destroyed the fetal heart monitoring material. She further failed to show that the alleged spoliation left her “prejudicially bereft” of the means to prosecute the action against the hospital. As such, her redress was limited to an adverse inference charge at trial with respect to the loss of the fetal heart monitoring data as against the hospital.

There are occasions where one party destroys evidence but the loss may affect both parties. This occurred in Ortiz v. Bajwa Development Corp., 89 A.D.3d 999, 933 N.Y.S.2d 366 (2d Dept. 2011). Defendant discarded business records showing the names and addresses of its employees who were potential witnesses. Both parties were equally affected by defendant’s loss of records so that neither had reaped an unfair advantage. However, the court held that plaintiff was entitled to a remedy under CPLR 3126, but only to the extent of precluding defendant from offering any testimony at trial from its employees whose names and addresses were lost.

A significant factor is whether a party can still prove its case or defense without the spoliated evidence. In Scarano v. Bribitzer, 56 A.D.3d 750, 868 N.Y.S.2d 147 (2d Dept. 2008), defendants failed to prove that plaintiff had disposed of a motorcycle helmet either intentionally or in bad faith or that the loss of the evidence would leave them without a defense. As such, the court held that preclusion of evidence as to plaintiff’s head injuries was unwarranted. Under the circumstances, a less severe sanction of a negative inference charge at trial was sufficient.

In De Los Santos v. Polanco, 21 A.D.3d 397, 799 N.Y.S.2d 776 (2d Dept. 2005), plaintiffs’ vehicle was involved in a collision with a police car which was destroyed after the accident. Without the police car, plaintiffs asserted they were deprived of the evidence necessary to prove speeding and reckless indifference. However, the court suggested that an accident reconstruction expert could examine the other vehicle and ascertain the speed of the police vehicle based upon point of impact and damage.

Thus, the court held that the appropriate remedy was to preclude defendants from offering any evidence on the issue of the point of impact of the vehicles. It directed that a negative inference charge be given at trial regarding the destruction of the police vehicle involved in the accident. The court observed that striking a pleading was a drastic sanction in the absence of willful or contumacious conduct. Less severe sanctions were appropriate where the missing evidence did not deprive the moving party of the ability to establish his or her case or defense.

Missing videotapes of an accident scene may present issues for the court, especially to the extent that the loss deprives the other party of possible proof of actual notice of a defect or transient condition. In Gogos v. Modell’s Sporting Goods Inc., 87 A.D.3d 248, 926 N.Y.S.2d 53 (1st Dept. 2011), plaintiff fell on slippery tiles in an area of the store under video surveillance. Defendants failed to produce the surveillance tapes in response to plaintiff’s demand despite a subsequent court order. The store manager testified at his deposition that the tapes were in a store safe. In a subsequent affidavit, a corporate officer stated that the tapes were no longer retained and that there were no videotapes depicting the area of the accident.

The court held that the destruction of the tapes was a direct violation of the court mandate and deprived plaintiffs of the opportunity to view possible material evidence. It directed that an adverse inference charge be given against defendant at trial, so that a jury could determine whether there was a reasonable explanation for the destruction of evidence and, if not, the inference to be drawn from its destruction.2

The appellate courts have not hesitated to modify a sanction imposed by the motion court where they determine that it was an improvident exercise of discretion. For example, in Minaya v. Duane Reade Intl. Inc., 66 A.D. 3d 402, 886 N.Y.S. 2d 154 (1st Dept. 2009), defendants failed to preserve a video recording that may have shown the stairway before and after plaintiff’s accident. The motion court held that the unavailability of the tapes may have impaired plaintiff’s ability to establish notice of the defective condition. It granted plaintiff’s motion to strike the answer to the extent of precluding defendant from presenting evidence at trial as to the issue of its notice of the condition of the stairs where the accident occurred. It also directed that the adverse inference charge be given. However, on appeal, the appellate court held that an adverse inference alone, without preclusion, was sufficient to prevent defendant from using the absence of the tapes to its own advantage.

Just as the courts have imposed sanctions to address the prejudice arising from destruction of material evidence, so too they have been reluctant to impose sanctions where the evidence negligently lost is not central to the case or its destruction not prejudicial. Under such circumstances, a lesser sanction, or no sanction, may be appropriate. In Klein v. Ford Motor Co., 303 A.D.2d 376, 756 N.Y.S.2d 271 (2d Dept. 2003), the court denied defendant’s motion to dismiss the complaint when plaintiff’s vehicle was inadvertently sold by the facility where it was stored.

The court reasoned that the action was predicated on negligent design. It found that the loss of the subject SUV was inadvertent and defendant was able to conduct a physical inspection and take photographs before its disposal. As such, the sanction of dismissal was unwarranted. The court stated that it was unclear that any sanction was warranted. Under the circumstances, the court granted defendant leave to move for the imposition of a lesser sanction at trial, upon a showing of genuine prejudice.3

It is clear that the courts will attempt to impose appropriate sanctions for the spoliation of evidence, whether intentional or negligent, where the adversarial party is prejudiced by this destruction of evidence.

Robert S. Kelner is the senior partner at Kelner & Kelner. He is cochairman of the New York County Lawyers Civil Trial Practice Course. Gail S. Kelner is an attorney with the firm.


1. CPLR 3126 provides in pertinent part:

If any party, …refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them:

• an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or

• an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or

• an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.

2. PJI 1:77.1.

3. See also Awon v. Harran Transportation Co. Inc., 69 A.D.3d 889, 895 N.Y.S.2d135 (2d Dept. 2010) (defendants’ motion to strike the pleadings was denied where defendants failed to show that the sale of plaintiff’s vehicle for scrap severely prejudiced their ability to defend the actions); Stroppel v. Wal-Mart Stores Inc., 53 A.D.3d 651, 862 N.Y.S.2d 554 (2d Dept. 2008), (plaintiff’s motion for sanctions for defendant’s failure to preserve certain logs from the day of the plaintiff’s injury was denied where defendants demonstrated that the log was not crucial evidence and the plaintiffs were not prejudiced by the defendant’s failure to preserve it).