Lovell v. United Skates of America, Inc.

Apr 25, 2006
Versions:28 A.D.3d 721
812 N.Y.S.2d 881

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Ruditzky, J.), dated May 5, 2005, which granted the plaintiffs motion pursuant to CPLR 3126 (3) to the extent of precluding it from offering evidence with respect to the condition of the subject roller skates.

Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, and the motion is denied.

The Supreme Court improvidently exercised its discretion in imposing a sanction of preclusion based on the alleged spoliation of evidence because the plaintiff did not establish that the defendant intentionally or negligently failed to preserve crucial evidence after being placed on notice that the evidence might be needed for future litigation (see Goll v American Broadcasting Cos., Inc., 10 AD3d 672, 673 [2004]; Andretta v Lenahan, 303 AD2d 527, 528 [2003]). Florio, J.P., Santucci, Mastro, Rivera and Covello, JJ., concur.