Decision and Order Defendants Hayes Law Practice, PLLC and Patrick J. Hayes, Esq.’s motion seeking an order dismissing the plaintiff’s complaint, pursuant to CPLR §3126, for spoliation of evidence and for failure to provide outstanding discovery, is granted. This is a legal malpractice claim that the plaintiffs brought after their underlying lawsuit was dismissed. In that case, the plaintiffs claimed that their home was badly damaged as a result of construction and demolition work done to the home on the neighboring property, which shared a common wall with their home. The plaintiffs’ original claims were dismissed because some were brought beyond the governing statute of limitations and the others were dismissed because of a filing error. Thereafter, the plaintiffs commenced the within action. The plaintiffs’ claims against all but the moving defendants were previously dismissed, and now the remaining defendants move to dismiss based upon claims of spoliation of evidence and failure to comply with court ordered discovery. The movants argue that the plaintiffs have failed to provide responses to their discovery demands despite several court orders instructing them to do so. More egregiously, the defendants contend that the plaintiffs disposed of the one piece of evidence that is at the center of this case when they sold their home, which was thereafter demolished before the defendants’ experts had an opportunity to inspect it. The defendants argue that as a result of the plaintiffs’ actions, they cannot mount a proper defense. Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR §3126. Holland v. W.M. Realty Mgt., Inc., 64 A.D.3d 627 (2nd Dept. 2009). The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence and may, under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness. Biniachvili v. Yeshivat Shaare Torah, Inc., 120 A.D.3d 605 (2nd Dept. 2014). Spoliation sanctions are not limited to cases where the evidence was destroyed willfully or in bad faith, since a party’s negligent loss of evidence can be just as fatal to another party’s ability to present a case or a defense. DiDomenico v. C & S Aeromatik Supplies, 252 A.D.2d 41 (2nd Dept. 1998). “When a party alters, loses or destroys key evidence before it can be examined by the other party’s expert, the court should dismiss the pleadings of the party responsible for the spoliation.” Squitieri v. City of New York, 248 A.D.2d 201 (1st Dept. 1998). Under normal circumstances, where the crux of the entire case is the damage that occurred to the plaintiffs’ premises, and the plaintiffs did not repair the damage, the defendants would unquestionably be entitled to have an expert inspect the premises. However, that is no longer possible in this case because the plaintiffs sold the premises that were the subject of the underlying lawsuit to their neighbors, who are the very same people that they had named as defendants in their original action. The aforementioned sale occurred a year after commencing this action, but the plaintiffs and their counsel kept this information from the defendants and from the court. To compound matters, it appears that the new owners had the plaintiffs’ former home, which is the primary piece of evidence in this case, fully demolished in June of 2018. The moving defendants only learned of the sale and demolition of the plaintiffs’ home through a review of ACRIS and DOB records, and the plaintiffs only acknowledge that the sale and demolition occurred for the first time in their opposition papers to the within motion. The plaintiffs’ attorney’s argument that the defendants’ spoliation motion is premature because depositions have not been held is without merit. The damage allegedly caused to the plaintiffs’ home is at the heart of this litigation. Neither the house nor the damage to the house can be reproduced or recreated and conducting depositions is not going to change that crucial fact. Plaintiffs’ counsel’s contention that she did not know that the defendants in the action would want to inspect the claimed damage to the premises because she was never served with a notice to inspect is likewise without merit. Plaintiffs’ counsel knows full well that the defendants are entitled to inspection of the premises in this type of case. Plaintiffs’ counsel’s contention that “inspection is not a prerequisite for this particular set of damages” and that all that is needed is an appraisal, is not persuasive. An appraisal, of necessity involves a physical inspection which is, as has been noted, impossible now that the property has been sold and the plaintiffs’ former home has been demolished. The fact that the plaintiffs relied upon experts to prove their claims in the underlying action was sufficient to put them on notice that the house, and in particular the common wall, might be needed for future litigation, and, as such, the plaintiffs were charged with the responsibility of preserving this crucial piece of evidence. The plaintiffs also argue that they are not responsible for the destruction of the key piece of evidence in this case because they simply sold the property and it was the new owner, their former neighbor, who destroyed the house and that, as such, no spoliation occurred. However, the sale of their home, which was done without the knowledge of, or notice to, either the court or the defendants, is tantamount to destruction of the primary piece of evidence upon which the defendants could have based their defense. Had notice been given, an expedited inspection schedule could have been prepared and the inspection would have been done long before the closing took place. Although the plaintiffs are not personally responsible for the demolition of their former home, it was their responsibility to give the defendants and the court notice of their intention to dispose of the property, yet they kept this information secret. By so doing, the plaintiffs bear the responsibility for the loss of the evidence. The Court also rejects the plaintiffs’ arguments that the moving defendants are not prejudiced as a result of the plaintiffs’ act of disposing of their home, and that there is no need to conduct an inspection of the subject premises because the defendants could and should rely upon the plaintiffs’ expert’s findings to defend this action. To suggest that the defendants would not be prejudiced if forced to rely on the plaintiffs’ experts at trial is absurd. Even if the Court did not dismiss the plaintiffs’ action as a result of spoliation, the plaintiffs’ repeated and continual disregard of court orders to provide discovery cannot be condoned. A search of the record reveals that, despite numerous court orders, the plaintiffs have failed to provide any of the discovery requested by the moving defendants. Indeed, the plaintiffs’ response to the defendants’ combined discovery demands, which took three court orders and the defendants making the within motion finally to be exchanged, fails to provide any information that is responsive to the demands whatsoever. The response is replete with plaintiffs’ counsel’s unwarranted and frivolous objections and does not provide a single responsive answer to any of the defendants’ demands relating to the extent of the plaintiffs’ actual damages and out of pocket expenses. Plaintiffs have failed to provide anything in support of the claim in their complaint that the cost to repair the damage done in 2014 was “in excess of” $250,000, including bills or invoices evidencing the repairs that were made to their home, if any. They have failed to supply collateral source information and authorizations to obtain the same, which would, at least, help the moving defendants to ascertain the extent of the plaintiffs’ actual damages and out of pocket expenses, taking into account what the plaintiffs’ homeowners insurance policy may have covered and paid. The plaintiffs have also failed and refused to provide any information regarding claims of damage done to their home in 2010. Plaintiffs’ counsel’s reliance on this court’s order dismissing some of the plaintiffs’ claims made in the underlying action because the statute of limitations had expired, in an attempt to deny the moving defendants discovery regarding the plaintiffs’ initial claims of damages that allegedly occurred in 2010, is unwarranted. The fact that the plaintiffs missed their opportunity to sue their neighbors for damages that they initially claimed occurred in 2010, does not preclude the moving defendants from discovery regarding those claims. It should also be noted that the only proof of damages offered by the plaintiffs are estimates, not bills, from a discovery response that was prepared in the plaintiffs’ underlying lawsuit, which was only offered as an exhibit to this motion and was never served or exchanged as a discovery response with the moving defendants in this case. It seems apparent that the plaintiffs are intentionally frustrating the efforts of defendants to ascertain the extent of damages, if any, sustained as a result of work and or demolition conducted by their neighbor, which was the subject of their original, underlying, action. Whether by design or negligence, the plaintiffs sold and disposed of the property that is at the heart of this case without ever notifying the court or the parties to the lawsuit that they were putting the property on the market, or that they had found a buyer, or that the closing was scheduled, so as to permit the defendants an opportunity to conduct an inspection of the damage to the property prior to its sale and demolition. By doing so, the plaintiffs have deprived the moving defendants of the ability to present a defense in this case. The Court also finds that the plaintiffs and their attorney have been intentionally and inexplicably delinquent in providing discovery in this case. As such, and based upon the foregoing, the defendants’ motion to dismiss the plaintiffs’ claims for failure to provide discovery and for spoliation of evidence, is granted. This constitutes the Decision and Order of the Court. Dated: May 6, 2020
