New York State Court of Claims

New York State Court of Claims

JORDAN v. THE STATE OF NEW YORK, #2008-029-036, Claim No. 113331, Motion No. M-75153


Claimant’s motion to strike answer, based on correctional facility losing photographs of accident location, denied without prejudice to claimant moving for spoliation sanctions at trial.

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:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Jeane L. Strickland Smith, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 6, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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.

October 6, 2008
White Plains, New York

Judge of the Court of Claims

Papers considered:

Notice of Motion, Affirmation and Exhibits

Affirmation in Opposition and Exhibits