Jerrick Assocs., Inc. v. Phx. Owners Corp.
| Decision Date | 09 February 2021 |
| Docket Number | 13079N,Index No. 653103/16,Case No. 2019-3325 |
| Citation | 142 N.Y.S.3d 20,191 A.D.3d 472 |
| Parties | JERRICK ASSOCIATES, INC., Plaintiff-Respondent-Appellant, v. PHOENIX OWNERS CORP., Defendant-Appellant-Respondent, Spiritos Properties, LLC, et al., Defendants. Phoenix Owners Corp., Counterclaimant-Appellant/Respondent, v. Jerrick Associates, Inc., Counterclaim-Defendant-Respondent/Appellant. |
| Court | New York Supreme Court — Appellate Division |
Davidoff Hutcher & Citron LLP, New York (Andrew K. Rafalaf of counsel), for appellant-respondent.
Rosenberg Feldman Smith LLP, Tarrytown (Stephen J. Sassoon of counsel), for respondent-appellant.
Renwick, J.P., Kern, Mazzarelli, Oing, JJ.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered June 15, 2017, which granted plaintiff Jerrick Associates, Inc.'s motion to sanction defendant Phoenix Owners Corp. for spoliation of evidence to the extent of granting an adverse inference at trial, unanimously affirmed, with costs.
"Under New York law, spoliation sanctions are appropriate where a litigant, intentionally or negligently, disposes of crucial items of evidence ... before the adversary has an opportunity to inspect them" ( Kirkland v. New York City Hous. Auth., 236 A.D.2d 170, 173, 666 N.Y.S.2d 609 [1st Dept. 1997] ). Here, where defendant partially replaced the sidewalk that is the subject of this litigation after its consultant inspected the sidewalk but without providing notice to plaintiff that the sidewalk replacement was to commence, or an opportunity to plaintiff to have a sidewalk consultant conduct an inspection prior to the replacement, Supreme Court providently exercised its discretion is sanctioning defendant for spoliation of evidence ( Jimenez v. Weiner, 8 A.D.3d 133, 133–134, 779 N.Y.S.2d 23 [1st Dept. 2004] ).
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...the evidence materially prejudiced its case in a way lesser sanctions could not cure. Jerrick Associates, Inc. v. Phoenix Owners Corp. , 191 A.D.3d 472, 142 N.Y.S.3d 20 (N.Y. Supreme Court, App. Div., 2021). In an action involving a sidewalk area that was the subject of litigation, the tria......
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...the plaintiff was no basis for dismissing the plaintiff’s claims against the seller. Jerrick Associates, Inc. v. Phoenix Owners Corp. , 191 A.D.3d 472, 142 N.Y.S.3d 20 (N.Y. Supreme Court, App. Div., 2021). In an action involving a sidewalk area that was the subject of litigation, the trial......
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...posts warranted spoliation sanctions. ATTORNEY CONDUCT §18:60 New York Objections 18-24 Jerrick Assocs., Inc. v. Phoenix Owners Corp. , 191 A.D.3d 472, 142 N.Y.S.3d 20 (1st Dept. 2021). Sanctions were appropriate where defendant partially replaced the subject sidewalk without providing plai......
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