In Osorio v. Louis Richardt Holdings LLC (21487/12E, NYLJ 1202784005507, Supreme Court, Bronx County, decided March 23, 2017), Bronx Supreme Court Justice Lizbeth González granted a plaintiff an adverse inference jury charge against several defendant property owners and/or operators, after holding that those defendants, during the discovery stage of litigation, wrongfully destroyed the accident location premises in which the plaintiff claims caused him to fall and sustain serious injuries.
Particularly, the plaintiff alleges that as a result of the defendants' negligence, he sustained serious injuries when a defective step collapsed as he ascended the basement stairs of premises located in Bronx County, causing him to fall to the ground. Approximately one year later in June 2013, and after the plaintiff commenced a lawsuit, the defendants replaced and destroyed the basement staircase without prior notice to the plaintiff's counsel - despite the plaintiff's counsel's requests for a site inspection. As a result, the plaintiff made a motion to strike the defendants' answers, and alternatively sought an adverse inference jury charge based on defendants' spoliation of material evidence.
The Court granted plaintiff's motion in part, holding as follows: "After careful consideration and review, the court finds that as a matter of law, defendants willfully and deceptively destroyed material evidence - the basement staircase - with notice that the evidence would be needed for litigation. The court notes that defendants moreover failed to correct their attorney's representation that the staircase remained unchanged post-accident as referenced in [plaintiff's counsel's] email to [defendants' counsel]. Plaintiff's motion is granted to the extent that the sanction of an adverse inference in plaintiff's favor is hereby ordered; this sanction shall be communicated to the jury in the event of trial. Striking the answers herein, however, is not warranted since the Preliminary Conference Order does not reference any inspections and plaintiff waited more than two years before attempting to schedule an inspection date...."
Salvatore R. Marino, Esq.