Jerrick Assoc., Inc. v Phoenix Owners Corp., 2021 NY Slip Op 00799 [191 AD3d 472]

February 9, 2021

Appellate Division, First Department

[*1]

Jerrick Associates, Inc., Respondent-Appellant/Counterclaim Defendant-Respondent/Appellant,

v

Phoenix Owners Corp., Appellant-Respondent/Counterclaimant Appellant/Respondent, et al., Defendants.

Davidoff Hutcher & Citron LLP, New York (Andrew K. Rafalaf of counsel), for appellant-respondent.

Rosenberg Feldman Smith LLP, Tarrytown (Stephen J. Sassoon of counsel), for respondent-appellant.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered June 15, 2017, which granted plaintiff Jerrick Associates, Inc.’s motion to sanction defendant Phoenix Owners Corp. for spoliation of evidence to the extent of granting an adverse inference at trial, unanimously affirmed, with costs.

“Under New York law, spoliation sanctions are appropriate where a litigant, intentionally or negligently, disposes of crucial items of evidence . . . before the adversary has an opportunity to inspect them” ( Kirkland v New York City Hous. Auth. , 236 AD2d 170, 173 [1st Dept 1997]). Here, where defendant partially replaced the sidewalk that is the subject of this litigation after its consultant inspected the sidewalk but without providing notice to plaintiff that the sidewalk replacement was to commence, or an opportunity to plaintiff to have a sidewalk consultant conduct an inspection prior to the replacement, Supreme Court providently exercised its discretion is sanctioning defendant for spoliation of evidence ( Jimenez v Weiner , 8 AD3d 133 , 133-134 [1st Dept 2004]). Concur—Renwick, J.P., Kern, Mazzarelli, Oing, JJ..