Appeals Court Calls a Let in Personal Injury Case

Dec 19, 2008

A state appeals court has reversed in part a trial court’s decision to strike the answer of a tennis complex, which had destroyed evidence after it had been named in a personal injury lawsuit.
In modifying the order, the appeals court found that “an adverse inference charge” was a more appropriate sanction against the defendants.
The plaintiff, Wilfried Koehler, sought damages for injuries he allegedly sustained when his foot became entangled in a net while playing tennis at a facility owned and operated by the Midtown Athletic Club, LLP and Tennis Corporation of America.
Early on, the.plaintiff’s attorney notified the defendants that the net was important to the litigation and requested that it be preserved. Insurers for both the plaintiff and the defendant photographed the net.
Nevertheless, the defendants failed to preserve the net, and the plaintiff moved to strike the defendants’ answer and for partial summary judgment as a sanction for spoliation of evidence. The defendants appealed.
While the appeals court agreed that spoliation had occurred and thus that some sanction was warranted, it disagreed with the trial court’s conclusion and ultimate remedy.
Citing case law, it wrote that “a party seeking a sanction pursuant to CPLR 3126, such as preclusion or dismissal is required to demonstrate that a litigant, intentionally or negligently, disposed of crucial items of evidence . . . before the adversary had an opportunity to inspect them . . ., thus depriving the party seeking a sanction of the means of proving his claim or defense. The gravamen of this burden is a showing of prejudice” (Kirschen v Marino, 16 AD3d 555, 555-556, 792 N.Y.S.2d 171).
“Here, the plaintiff is able to testify at trial that he fell when his foot became entangled in the net and, indeed, he testified at his deposition with respect to the cause of the accident. Furthermore, both the plaintiff and the defendants photographed the holes in the net in question, and those photographs are available to plaintiff to support his contention that defendants had constructive notice of the alleged dangerous condition, i.e., holes in the net in which a person playing tennis could become entangled (see generally Morgan v State of New York, 90 NY2d 471, 488, 685 N.E.2d 202, 662 N.Y.S.2d 421).
“Thus, we conclude that, ‘under all the relevant circumstances, neither striking the answer nor precluding defendant[s] from offering evidence at trial is warranted’ (Quinn v City Univ. of N.Y., 43 AD3d 679, 680, 841 N.Y.S.2d 306). Rather, we conclude that an adverse inference charge against defendants is a more appropriate sanction.
Wilfried Koehler v. Midtown Athletic Club, LLP and Tennis Corporation of America; S.Ct.N.Y., App. Div., 4th Dept.; 1144, CA 08-00550, 2008 NY Slip Op 7734; 864 N.Y.S.2d 823; 2008 N.Y. App. Div. LEXIS 7574; 10/8/08
Attorneys of Record: (for defendants) Costello, Cooney & Fearon, PLLC, Syracuse (Nicole Marlow-Jones Of Counsel) (for plaintiff) Woods Oviatt Gilman LLP, Rochester (James W. Kiley Of Counsel).


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