Peters v. Hernandez
| Decision Date | 14 September 2016 |
| Citation | 142 A.D.3d 980,2016 N.Y. Slip Op. 05983,37 N.Y.S.3d 443 (Mem) |
| Parties | Glenn PETERS, respondent, v. Victor O. HERNANDEZ, et al., defendants, MDC Tavern Corp., doing business as Carousel, et al., appellants. |
| Court | New York Supreme Court — Appellate Division |
142 A.D.3d 980
37 N.Y.S.3d 443 (Mem)
2016 N.Y. Slip Op. 05983
Glenn PETERS, respondent,
v.
Victor O. HERNANDEZ, et al., defendants,
MDC Tavern Corp., doing business as Carousel, et al., appellants.
Supreme Court, Appellate Division, Second Department, New York.
Sept. 14, 2016.
Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP, Hicksville, NY (Bradley J. Levien of counsel), for appellants.
Sanford L. Pirotin, P.C., Westbury, NY (William S. Kanas of counsel), for respondent.
In an action, inter alia, to recover damages for personal injuries, the defendants MDC Tavern Corp., doing business as Carousel, Mark E. Carney, Dennis Charette, and Gregory Robert Walsh appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Hudson, J.), dated May 13, 2015, as granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike their answer on the ground of spoliation of evidence.
ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the answer of the defendants MDC Tavern Corp., doing business as Carousel, Mark E. Carney, Dennis Charette, and Gregory Robert Walsh on the ground of spoliation of evidence, and substituting therefor a provision granting that branch of the plaintiff's motion to the extent of directing that an adverse inference charge be given against those defendants at the trial of this action with respect to a video recording of the underlying incident and otherwise denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
“Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence” (
Morales v. City of New York, 130 A.D.3d 792, 793, 13 N.Y.S.3d 548 ; see CPLR 3126 ; Neve v. City of New York, 117...
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