Friday, April 13, 2007

What is the proper standard on a motion to strike for spoliation of evidence?

The proper standard is whether the moving party has lost the chance to establish his or her position, according the Second Department, in Molinari v. Smith, decided on April 10, 2007.

Seeking damages after a fall from a trampoline, and arguing that the trampoline had been deliberately disposed of so it could not be inspected, plaintiff moved to strike defendant's answer, citing CPLR 3216.

The court denied the motion, since "the loss of the opportunity to inspect the trampoline will not deprive the plaintiffs of the means of proving their claims of negligent supervision and attractive nuisance."

The court did allow lesser sanctions, however, requiring defendants to stipulate to the admission of the manufacturer's assembly and safety instructions, and allowing a negative inference charge at trial.