In this contested probate proceeding commenced by the nominated executor (“proponent”), objectants move to dismiss the probate petition based on proponent’s purported intentional destruction of relevant evidence. Alternatively, objectants seek the imposition of some other form of sanction. Proponent denies that he destroyed any relevant evidence, intentionally or otherwise.Decedent died on February 13, 2013, at age 73, survived by her son and daughter (“objectants”). It is undisputed that decedent had been estranged from objectants in the decades leading up to her death. In the propounded instrument, dated January 25, 2011, decedent left the bulk of her estate to Brown University and expressly disinherited objectants. Proponent, the attorney-draftsman, receives nothing under the propounded instrument.For several decades prior to her death, decedent lived in an apartment owned by her brother. A few days after her death, her brother allowed objectants to enter the apartment. According to their affidavits, objectants went to the apartment together on February 17, 2013, took photographs and removed certain items. A day or two later, decedent’s son returned to the apartment alone, filmed the apartment and removed additional items.Upon learning that objectants had entered the apartment, proponent avers that he visited the apartment and “took affirmative action to secure” the premises. In his affidavit, he describes the contents therein, including financial statements, tax returns, handwritten correspondence, papers regarding certain litigation, newspaper and magazine articles, notes, business cards, etc. Over the next several months, proponent states that he and his colleague searched the apartment and removed potentially relevant documents including financial and medical records and “any and all other documents that were relevant to this proceeding.” Proponent testified during his SCPA 1404 deposition that he and his colleague “threw a number of things away” and transferred the remaining items and documents to his office.In his affidavit, proponent avers that decedent’s brother “regularly inquired” as to when he could have the apartment cleared of decedent’s belongings so that it could be sold. Proponent states that, before the apartment was cleared of all remaining items, he and his colleague had removed and stored all remaining potentially relevant items. In late June 2013, more than four months after decedent’s death, proponent gave written instructions to the building’s superintendent to clean out the apartment and decedent’s storage space in the building. The superintendent complied and cleared out the apartment in July of 2013. Proponent states that, prior to the cleaning, he had ensured that only trash remained, and to the extent that he found “anything that was not trash,” proponent arranged for the items to be stored.In support of their claim of spoliation, objectants allege that, when they were in the apartment in February of 2013, they saw a photograph of decedent’s son and a note from one of decedent’s caregivers stating that decedent’s other caregiver “has no pain medication for [decedent].” Since objectants did not see these two items among those that proponent had removed from the apartment and produced during discovery, they conclude that proponent discarded them, and they speculate that he must have discarded other items as well.Objectants also point to purported inconsistencies between proponent’s affidavit and his 1404 deposition. Specifically, they refer to the transcript where proponent was asked to describe the documents he had removed; he answered that “there were some very old financial statements.” When asked if there was anything else, proponent answered “no.” Objectants thus question proponent’s veracity when he offers, in his affidavit, a more expansive description of the documents he removed to his office.Objectants further argue that proponent should have informed them of his intention “to destroy” the contents of the apartment, and that his failure to do so deprived them of an opportunity to thoroughly inspect the contents before they were discarded. Objectants cite proponent’s failure to inventory the items in the apartment before destroying them as evidence of proponent’s intent to avoid disclosure of unfavorable evidence. However, objectants do not provide any authority for the proposition that proponent had a legal obligation to itemize every item in decedent’s possession at her death. Moreover, the fact that objectants themselves were in decedent’s apartment sorting through her personal items prior to proponent’s review of such items, undercuts their speculation that they were disadvantaged by proponent’s conduct.Since they did not file objections until September 25, 2013, objectants contend that proponent could not have known the basis for such objections and was thus not in a position to assess the relevancy of the discarded items prior to that date. Objectants’ responsive pleading sets forth only two objections to probate-lack of testamentary capacity and lack of due execution. Proponent, an attorney specializing in probate matters and familiar with the standard objections to probate, credibly counters that the basis for any potential objections was obvious from the outset.Legal AnalysisUnder New York’s common-law doctrine of spoliation, a party who destroys, discards or otherwise loses relevant evidence may be subject to sanctions, and courts have “broad discretion to provide proportionate relief to the party deprived of the lost evidence” (Ortega v. City of NY, 9 NY3d 69, 76 [2008]). In their motion, objectants seek the most drastic of all sanctions-dismissal of the probate petition in its entirety. Alternatively, they seek any lesser sanction that the court deems appropriate.The parties agree that, on a motion for sanctions based on spoliation, the movant must establish that: (1) the party with control over potentially relevant evidence had an obligation to preserve it; (2) the evidence was destroyed with a “culpable state of mind”; and (3) the destroyed evidence was relevant to the movant’s claim or defense (Pegasus Aviation I, Inc., v. Varig Logistica, 26 NY 543, 547 [2015]; Duluc v. AC & L Food Corp., 119 AD3d 450, 451 [1st Dept 2014]). A “culpable state of mind” for purposes of a spoliation motion includes ordinary negligence (Pegasus, supra, at 547; Duluc, supra, at 451). The burden is on the movant to make the requisite showing (Duluc supra, at 452, citing Mohammed v. Command Sec. Corp., 83 AD3d 605 [1st Dept 2011]). Objectants’ motion rests on their speculation that there may have been items in the apartment discarded by proponent which would have demonstrated that decedent was under a delusion or otherwise lacking testamentary capacity when she executed the propounded instrument.Objectants have failed to establish the second and third elements of a spoliation claim. Their allegations do not support a finding that proponent deliberately discarded items with an intent to withhold unfavorable evidence or that he negligently discarded crucial evidence. Moreover, objectants fail to provide even a modicum of proof that items which may have been disposed of were relevant to the issues at hand (see, e.g., Jennosa v. Vermeer Mfg. Co., 64 AD3d 630, 631-32 [2nd Dept 2009]).It is important to note the multitude of options available to objectants from which they themselves could obtain evidence relevant to their objections. In pursuing discovery under SCPA 1404, objectants sought and obtained a substantial amount of relevant information. They deposed proponent, medical professionals who treated decedent, staff members of decedent’s building, decedent’s brother, decedent’s former estate planning attorney, and several bank employees who advised decedent on financial issues. In response to objectants’ document demands, proponent produced over 300 pages of medical records (including lists of various drugs used by decedent during the relevant time period), and about 1,300 pages consisting of financial records, tax returns, calendars, correspondence between decedent and her former estate planning attorney, and legal correspondence. Proponent also signed thirty HIPAA authorizations enabling objectants to obtain medical information from decedent’s health care providers. In light of the information they received or to which they had access, objectants cannot credibly claim that the allegedly discarded evidence would have been their only way of proving the allegations giving rise to their objections.Objectants argue that they are entitled to a presumption that any discarded items were relevant to the instant probate proceeding. However, given objectants’ failure to show that proponent discarded any items with an intent to withhold unfavorable evidence, objectants are not entitled to a presumption of relevance (see Pegasus Aviation I, Inc., v. Varig Logistica, 26 NY 543, 547 [2015]; see also Estate of Salas, NYLJ, April 24, 2018, at 30 [Sur Court, Richmond County] [noting courts' general reluctance, in spoliation cases, to dismiss a pleading absent a finding that a party acted intentionally to thwart another party's ability to prosecute their claim]; Khatabi v. Bonura, 2017 US Dist LEXIS 61921 [SD NY, April 21, 2017, No. 10 Civ 1168] ["where destruction of evidence occurs as the result of ordinary negligence, a presumption of relevance never applies"]). Objectants have the burden of establishing relevance, and their speculations cannot carry this burden (see generally Estate of Chodkowski, NYLJ, Feb. 18, 2011, at 33, col 4 [Sur Court, Suffolk County] [rejecting spoliation claim, noting "spoliation requires some modicum of proof that the information that was disposed of, lost or destroyed was relevant to the issues before the court"]; Jennosa v. Vermeer Mfg. Co., 64 AD3d 630, 631-32 [2nd Dept 2009] [reversing lower court’s imposition of sanctions on ground that plaintiff’s contention that the lost evidence would be relevant to his claim was too “speculative” to justify sanctions).The court concludes that objectants have not established a basis for the imposition of any form of sanction upon proponent. Accordingly, the motion is denied in its entirety.Dated: December 31, 2018
