This is claimant’s motion for an order striking defendant’s answer
for failing to provide claimant with copies of photographs of the subject
incident pursuant to her disclosure demands.
In the underlying claim, claimant alleges she was injured when she slipped and
fell on a wet floor at Green Haven Correctional Facility on January 26, 2006.
In response to claimant’s demand for copies of photographs showing the
location of the accident, defendant responded “no photographs of the
accident scene are known to exist at this time” (Defendant’s
Response to Notice for Discovery and Inspection dated July 3, 2007). However,
two correction officers testified at their depositions that photographs were
taken as part of defendant’s response to the incident and, in opposition
to the motion, defendant has submitted affidavits from two different officers
confirming that such photographs were taken.
Correction Officer William Lete states that he was called to take photographs
and document the accident scene, that he used a Sony digital camera that
generates a floppy disc containing the photographs and that he gave the disc to
Lt. Richard Ward. He further states that he has not seen the disc since he gave
it to Lt. Ward the day of the accident.
Lt. Ward states that he put the disc, attached by paper clip to statements
concerning the incident, in the mailbox of the Deputy for Security located in
the Watch Commander’s office and does not recall seeing the disc, or any
printed photographs, after he placed the disc in the box.
Correction Officer Richard Morris testified at his deposition that Polaroid
photographs were also taken the day of the incident and that he saw the
photographs that day, although he has not seen them since.
Helen Boulanger, secretary to the Deputy Superintendent for Security, has
submitted an affidavit in which she states that she has no recollection of ever
seeing any statements or photographs of the subject incident but that a thorough
and diligent search was made at the request of the Attorney General and that
neither the disc nor any printed photographs were ever located.
Thus, defendant concedes that photographs were taken but maintains that they
have been “lost.”
The determination of the appropriate sanction, if any, to be imposed for the
spoliation of evidence lies within the discretion of the trial court
(Iamiceli v General Motors Corp., 51 AD3d 635 [2d Dept 2008]). The
specific remedy sought by claimant herein – striking defendant’s
answer – is “inappropriate absent a clear showing that the failure
to comply with discovery demands is willful, contumacious, or in bad
faith” (Harris v City of New York, 211 AD2d 663, 664 [2d Dept
1995]; see also Jenkins v Proto Property Services, ___ AD3d ___, 2008 NY
Slip Op. 06803 [2d Dept 2008]). Regardless of whether the photographs were
intentionally destroyed or inadvertently lost, more germane to the present
application is the fact that claimant does not even address what effect the
absence of the photographs will potentially have on her ability to prove her
case (see E.W. Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d 653 [2d
Dept 2007]), much less meet “[h]er burden of demonstrating that [she]
would be severely prejudiced by reason of the missing evidence”
(Kirschen v Marino, 16 AD3d 555 [2d Dept 2005]). Thus, “at this
juncture, it is not clear what sanction, if any, is warranted” (Cameron
v Nissan 112 Sales Corp., 10 AD3d 591 [2d Dept 2004]).
Accordingly, the motion is denied without prejudice to claimant revisiting the
issue at trial, in terms of both inquiring into the circumstances surrounding
the loss of the photographs and renewing her application for an appropriate
sanction once the court is in a position to assess the effect of such loss on
claimant’s case. Claimant’s deadline for serving and filing a note
of issue is extended for a period of 30 days following the filing of this
decision and order.