New York State Court of Claims

New York State Court of Claims

BRAND v. THE STATE OF NEW YORK, #2007-044-594, Claim No. 106915, Motion No. M-73650


Claimant’s motion to strike answer based on spoliation of evidence is denied, due to lack of showing that documents which should have been preserved were destroyed willfully or in bad faith. However, court will give claimant benefit of adverse inference regarding the contents of the documents.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 24, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, a former inmate, filed this claim on November 13, 2002 to recover for personal injuries allegedly received when he fell in the F-3 shower area at Woodbourne Correctional Facility (Woodbourne) in August 2002. Defendant State of New York (defendant) answered and asserted various affirmative defenses. Some discovery was conducted. Claimant now moves to strike the answer based upon the alleged spoliation of evidence. Defendant opposes the motion.

In July 2003, claimant served Combined Demands requesting, among other things: all incident reports; maintenance records for the three years prior to the incident; work orders for both the removal and replacement of shower mats; and cleaning schedules for the three months prior to the incident. Defendant provided the requested documents in its Response to Demand for Discovery filed April 16, 2004. Thereafter, claimant served a Demand to Preserve Essential Records (dated April 22, 2004) requesting preservation of (among other things) Reports for the Monthly Inspection of the Facility (Form 2098) for the two-year period prior to the accident. During a deposition held at Woodbourne in March 2005, claimant specifically requested - for the first time - copies of the Monthly Safety and Environmental Reports (Form 2098, Attachment D), and the Fire and Safety Monthly Reports (Form 2098, Attachment E) for August 1999 through August 2002. In response thereto, defendant has produced only copies of the monthly Safety and Environmental Reports for the period from January 22, 2002 through August 19, 2002.[1] Defendant conducted a search for the remaining requested documents without success, and has so informed claimant.[2] Specifically, counsel for defendant advised that Fire and Safety Monthly Reports for the time period August 2001 - August 2002 could not be located by either Woodbourne or Department of Correctional Services’ (DOCS) central office.[3]

Claimant asserts that this claim was filed in November 2002, and defendant had notice at that time that the records would be requested to establish claimant’s cause of action. Claimant argues that because DOCS Directive 4066 requires the preservation of such records for a period of three years, and defendant has not satisfactorily explained their absence, the answer should be stricken.

Conversely, defendant asserts that because it is only required to preserve the records for three years, the requested documents pertaining to events prior to 2002 had been destroyed before opposing counsel made his request in March 2005. Defendant also contends that claimant’s cause of action concerns the alleged lack of rubber mats in the bathroom and shower areas, and that evidence thereof can be introduced through claimant’s own testimony.

It is well settled that “courts have discretion to impose sanctions under CPLR 3126 when a party intentionally, contumaciously or in bad faith fails to comply with a discovery order or destroys evidence prior to an adversary’s inspection” (Puccia v Farley, 261 AD2d 83, 85 [1999]; see also Jones v General Motors Corp., 287 AD2d 757, 759 [2001]). In order to succeed on this motion, “[c]laimant must [initially] make a prima facie showing that . . . the document in question actually exists and there is no reasonable explanation for failing to produce it” (Patterson v State of New York, Ct Cl, Sept. 30, 2003, Ruderman, J., Claim No. 101889 [UID # 2003-010-028]; see also Wilkie v New York City Health & Hosps. Corp., 274 AD2d 474 [2000], lv denied 96 NY2d 705 [2001]). In seeking to have sanctions applied, claimant is required to demonstrate that defendant “destroy[ed] essential physical evidence,” leaving him without the ability to prove his claim with incisive evidence (Gonzalez v State of New York, Ct Cl, Apr. 12, 2006, Sise, P.J., Claim No. 104279, Motion No. M-70394, Cross Motion No. CM-70457 [UID # 2006-028-542], quoting Foncette v LA Express, 295 AD2d 471, 472 [2002]).

Clearly, claimant has established that, pursuant to DOCS regulations, the requested documents should have existed.[4] It is equally evident that defendant had notice as early as November 2002 (when this claim was served) that the requested inspection reports would be relevant in order to establish claimant’s cause of action at trial (see Branham v State of New York, Jan. 8, 2007, Ct Cl, Ruderman, J., Claim No. 107649, Motion No. M-72045 [UID # 2007-010-001]). At that time, and pursuant to DOCS directive 4066, the majority of the reports requested would have been available and should have been preserved. Further, even if the claim itself did not provide adequate notice, claimant’s demand to preserve records - served in April 2004 - should have resulted in the preservation of the Reports of the Monthly Facility Inspection for the time period from April 2001 through the date of claimant’s fall.[5]

The Court finds that defendant has not provided any reasonable excuse for the destruction of the requested records. However, there has been no showing that defendant destroyed the records willfully or in bad faith. Rather it appears that the Office of the Attorney General did not advise DOCS to retain the documents. Under these circumstances, the Court will not impose the drastic remedy of striking defendant’s answer. The Court, however, will give claimant the benefit of an adverse inference that if the records had been produced, they would have been unfavorable to defendant (see Branham v State of New York, supra). Accordingly, claimant’s motion is granted to that extent.

December 24, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on June 29, 2007; Affirmation of Robert W. Nishman, Esq., dated June 26, 2007, and attached exhibits.

2) Affirmation in Opposition of Geoffrey B. Rossi, AAG, dated August 1, 2007, and attached Exhibits A through I.

3) Reply Affirmation of Robert W. Nishman, Esq., dated September 5, 2007, and attached exhibit.

Filed papers: Claim filed on November 13, 2002; Verified Answer filed on December 19, 2002.

[1]. According to counsel for defendant, the inspections pertaining to F-3 block at Woodbourne are those of April 2002 and June 2002.
[2]. Counsel for defendant was in possession of the Inmate Accident Log Form for Woodbourne for the time period 1999-2003, and provided claimant with copies, even though those documents were not requested.
[3]. Despite numerous requests, the State has failed to provide an affidavit from anyone with personal knowledge of the destruction of the documents.
[4]. Claimant’s contention that the absence of the documents establishes defendant’s failure to conduct the required inspections, and thus establishes defendant’s negligence, is without merit.
[5]. Counsel for defendant candidly admits that the Demand to Preserve Essential Documents provided notice to defendant to retain the documents listed therein. However, counsel (who was not assigned to defend this claim until well after the demand had been issued) did not personally learn of the request until the March 2005 deposition at Woodbourne.