The following e-filed documents, listed by NYSCEF document number (Motion 003) 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 129, 130, 131, 166, 378, 379, 426, 427, 444, 445 were read on this motion to/for DISMISS. The following e-filed documents, listed by NYSCEF document number (Motion 004) 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 162, 164, 165, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 187, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 240, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 278 were read on this motion to/for SANCTIONS. The following e-filed documents, listed by NYSCEF document number (Motion 011) 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 373, 375, 376, 377, 382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 465, 466, 4671 were read on this motion to/for SANCTIONS. DECISION ORDER ON MOTION Upon the foregoing documents, it is This is a breach of contract action between, Earthlink, LLC (EarthLink) and Charter Communications Operating, LLC’s (Charter) wherein EarthLink alleges that Charter “secretly used its call centers to target” EarthLink’s subscribers and “affirmatively mislead them about EarthLink and its service,” among other claims. (NYSCEF Doc. No. [NYSCEF] 15, Amended Complaint 52.) The background of this case is set forth in the court’s prior decision and will not be repeated here except to resolve motions 003, 004 and 011. (NYSCEF 68, April 6, 2022 Decision and Order [mot. seq. no. 002).) In motion 03, plaintiff Earthlink moves pursuant to CPLR 3211(a)(1) and (a)(7) to dismiss defendant Charter's counterclaims with prejudice. In motion 04, Earthlink moves pursuant to CPLR 3126 (1) for adverse inferences on summary judgment and/or trial that (a) Charter destroyed its audio recordings of customer service calls with EarthLink's customer in deliberate disregard of EarthLink's request to preserve and Charter's legal obligation to preserve those recordings, and (b) these recordings, had they not been deleted by Charter, would have provided evidence demonstrating Charter's misstatements and improper targeting of EarthLink's customers as alleged in the Amended Complaint in support of Counts I, II, IV, V, VII and VIII; (2) to preclude Charter from offering any evidence contrary to EarthLink's evidence showing Charter's misstatements and improper targeting of EarthLink customers in support of Counts I, II, IV, V, VII and VIII; and (3) to require Charter to pay EarthLink's attorneys' fees and costs associated with this application; In motion 011, Charter moves pursuant to CPLR 3126 for (a) adverse inferences on summary judgment and/or trial that (1) EarthLink destroyed the email accounts of two employees when EarthLink had a legal obligation to preserve them, and (2) had EarthLink preserved the email accounts, the emails would have supported Charter's defenses in this litigation; (b) monetary sanctions and reimbursement of (1) Charter's attorneys' fees and costs expended in connection with making this application, (2) costs to pursue information relating to EarthLink's preservation of the emails at issue on this motion, (3) costs of Charter's previous (and now withdrawn)2 Order to Show Cause for Spoliation Sanctions related to EarthLink's call recordings, and (4) costs associated with any future time spent on litigating these issues. EarthLink's Spoliation Motion Against Charter (mot. seq. 004) The issue in this case is whether Charter used its call center communications with EarthLink's customers to spread false information about EarthLink and convince Earthlink customers to switch their internet service from EarthLink to Charter. (NYSCEF 15, Amended Complaint
12, 56.) EarthLink seeks to punish Charter for destroying the recordings of phone calls between Charter's call centers and EarthLink's customers. "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." (Delmur, Inc. v. School Constr. Auth., 174 AD3d 784, 786 [internal quotation marks omitted].) EarthLink sent a preservation notice to Charter on July 27, 2020 notifying Charter to “preserve information, documents, and electronically stored information potentially relevant” to “breaches of certain provisions of the High-Speed Service Agreement.” (NYSCEF 142, Preservation Notice.) EarthLink initiated this action on September 9, 2020 alleging that Charter misinformed Earthlink’s Service Subscribers during customer service calls. (NYSCEF 1, Summons and Complaint
