N.Y. C.P.L.R. § 3126

CPLR 3126 permits a trial court to dismiss a complaint when a party disobeys a disclosure order and frustrates disclosure.

Eagle Star Insurance Co. of America v. Behar · filed 1994-08-01

Accordingly, since the plaintiff disobeyed the order dated June 5, 1991, and thereby frustrated the disclosure scheme provided by the CPLR, the Supreme Court did not improvidently exercise its discretion in dismissing the complaint pursuant to CPLR 3126 insofar as it is asserted against the defendant Rita Behar.

Section 3126 permits dismissal of a complaint for willful and contumacious failure to comply with a disclosure order.

Abruzzo v. Malerba · filed 1994-10-31

We find that the Supreme Court did not improvidently exercise its discretion in dismissing the plaintiffs’ complaint pursuant to CPLR 3126.

Section 3126(3) does not warrant dismissal when a plaintiff becomes too ill to be deposed after the defendants’ motions delayed a deposition her counsel had promptly sought.

Wisman v. Tompkins · filed 1995-12-29(3)

The Supreme Court properly denied the defendants’ respective cross motions to dismiss the complaint based upon the 101-year old plaintiffs inability to participate in a pretrial deposition (see, CPLR 3126 [3]; cf., Miller v United Parcel Serv., 143 AD2d 820). Under the circumstances of this case, the plaintiffs inability to participate in a pretrial deposition due to her ill health does not entitle the defendants to dismissal of her complaint.

CPLR 3126 permits dismissal of a pleading for disobeying a disclosure order when the party’s conduct is willful, contumacious, or in bad faith.

Castrignano v. Flynn · filed 1998-11-09

Although the drastic remedy of striking a pleading pursuant to CPLR 3126 for failure to comply with court-ordered disclosure should be granted only where the conduct of the resisting party is shown to be willful, contumacious, or in bad faith, it is equally well settled that where a party disobeys a court order, and by his or her conduct frustrates the disclosure scheme provided by the CPLR, dismissal of a pleading is within the broad discretion of the trial court (see, Frias v Fortini, 240 AD2d 467).

Section 3126 permits dismissal when a party fails to comply with a disclosure order; compliance requires a timely, good-faith response that meaningfully addresses the requests.

Kihl v. Pfeffer · filed 1999-11-30

Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a “court may make such orders * * * as are just,” including dismissal of an action (CPLR 3126). Finally, we underscore that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully.

CPLR 3126 (3) permits dismissal of a complaint for failure to comply with disclosure orders, and the court may deny a motion to vacate that dismissal based on the party’s conduct.

Pellegrino v. Salzberg · filed 2000-03-27(3)

By order dated April 21, 1999, the Supreme Court sua sponte dismissed the complaint pursuant to CPLR 3126 (3) upon the plaintiffs’ failure to comply with orders directing disclosure. In view of the plaintiffs’ conduct, the Supreme Court providently exercised its discretion in denying the plaintiffs’ motion to vacate that order (see, Cauley v Long Is. R. R. Co., 234 AD2d 252; Watson v Esposito, 231 AD2d 512; Kaplan v Elkind, 208 AD2d 683).

CPLR 3126 (3) permits dismissal of a pleading when a party disobeys a disclosure order and frustrates disclosure.

Abouzeid v. Cadogan · filed 2002-02-11(3)

Where a party disobeys a court order, and by his conduct frustrates the disclosure scheme provided by the CPLR, dismissal of a pleading is within the broad discretion of the trial court (see, Kihl v Pfeffer, 94 NY2d 118, 122-123; Zletz v Wetanson, 67 NY2d 711, 713; Castrignano v Flynn, 255 AD2d 352, 353; Frias v Fortini, 240 AD2d 467, 468).

CPLR 3126 permits a court to strike an answer when a party repeatedly fails to comply with disclosure orders.

Min Yoon v. Costello · filed 2006-05-18

The sanction of striking the answer was warranted in light of defendants’ repeated and persistent failure to comply with several disclosure orders (CPLR 3126).

Section 3126(3) permits dismissal when a party’s failure to comply with a disclosure order frustrates the disclosure process.

Adamski v. Schuyler Hospital, Inc. · filed 2007-01-18(3)

Thus, it is not an abuse of discretion to dismiss a cause of action when a party’s failure to comply with a court order frustrates the disclosure process (see CPLR 3126 [3]; Kihl v Pfeffer, supra at 122; Du Valle v Swan Lake Resort Hotel, LLC, supra at 618).

Section 3126 permits dismissal of a complaint when a party willfully fails to comply with court-ordered disclosure.

Horne v. Swimquip, Inc. · filed 2007-01-30

Furthermore, the Supreme Court providently exercised its discretion in granting the separate cross motions of the defendant Sta-Rite Industries, Inc., and the defendants Trataros Construction, Inc., and Basil-Trataros, a joint venture, in effect, pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them for her failure to timely comply with court-ordered disclosure.

CPLR 3126 permits dismissal when a party fails without reasonable excuse to obey repeated orders to provide bills of particulars.

Manrique v. New York-Presbyterian Hospital · filed 2007-05-03

The complaint was properly dismissed because of plaintiffs failure, without reasonable excuse, to comply with the court’s numerous orders directing her to serve bills of particulars identifying the alleged malpractice or negligence of each defendant separately (CPLR 3042 [d]; 3126; see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]; Siegman v Rosen, 270 AD2d 14, 15 [2000]).

Section 3126 permits preclusion of trial testimony when a party fails to appear for a deposition, but conditionally striking the answer requires evidence of willful and contumacious noncompliance.

Patel v. DeLeon · filed 2007-08-14

Ordered that the order is modified, on the law, by deleting the provision thereof conditionally striking the answer of the defendant Martin DeLeon unless he appeared for a deposition on or before a date to be set by the plaintiffs and substituting therefor a provision precluding the defendant Martin DeLeon from offering any testimony at trial unless he appears for a deposition at a time and place mutually agreed to by the parties, but in no event less than 30 days before trial; as so modified, the order is affirmed, without costs or disbursements.

CPLR 3126 permits a court to strike an answer and counterclaim when a party fails to comply with a disclosure order.

JP Morgan Chase Bank v. Mark Elliot Korn & Associates, LLC · filed 2009-10-20

The Supreme Court providently exercised its discretion in striking the defendants’ answer and counterclaim based upon their failure to comply with the order entered April 21, 2008 (see Hamilton v Ocean Mgt. & Realty Corp., 288 AD2d 262, 263 [2001]).

CPLR 3126 permits dismissal for persistent, unexplained noncompliance with disclosure orders, including a conditional dismissal order that becomes absolute on default.

Santiago v. City of New York · filed 2010-03-09

The complaint was properly dismissed for persistent, unexplained noncompliance with four disclosure orders, including a self-executing conditional order of dismissal that was granted on default and became absolute (see AWL Indus., Inc. v QBE Ins. Corp., 65 AD3d 904 [2009]; Min Yoon v Costello, 29 AD3d 407 [2006]).

CPLR 3126 permits dismissal for failure to comply with court-ordered disclosure only when the resisting party's conduct is willful and contumacious.

Moray v. City of Yonkers · filed 2010-04-13

The record does not support the dismissal of the cause of action to recover damages for intentional infliction of emotional distress pursuant to CPLR 3126, as there was no evidence of willful or contumacious conduct in connection with the plaintiffs failure to authorize the release of the records at issue (see Simpson v City of New York, 10 AD3d 601, 602-603 [2004]; Lerner v Knot, 201 AD2d 466 [1994]).

A party seeking dismissal or preclusion under CPLR 3126 for disobeying a disclosure order must establish that the opponent refused to comply with that order.

Esposito v. Podolsky · filed 2013-03-27

The defendants failed to establish that the plaintiff refused to comply with an order directing disclosure (see CPLR 3126).

Section 3126 gives the court broad discretion to impose sanctions for refusing to obey disclosure orders or wilfully failing to disclose required information.

D.B. v. Roman Catholic Diocese of Brooklyn · filed 2024-10-30

CPLR § 3126 vests this Court with broad discretion regarding the nature ... and severity of sanctions to impose upon a party that "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" or "frustrates the disclosure scheme."

Section 3126(1) permits designated issues to be resolved against a party as a disclosure sanction, but the court declined that sanction where the party had made most of the required disclosure and its conduct was not contumacious.

Wilensky v. JRB Marketing & Opinion Research, Inc. · filed 1990-05-29(1)

While the defendant should have earlier alerted the plaintiff to the impossibility of further disclosure, its conduct was not contumacious and therefore the harsh sanction requested by the plaintiff of striking the defendant’s answer is unwarranted. Nor are we persuaded that, at this time, designated issues can or should be resolved against the defendant (see, CPLR 3126 [1]), although the plaintiff may be entitled to appropriate evidentiary rulings at trial (see, e.g., Richardson, Evidence § 92 [Prince 10th ed]).

Section 3126(1) permits a court to deem relevant issues resolved in the requesting party’s favor when the other party refuses to comply with a disclosure order.

Meyer v. McKie · filed 1983-01-07(1)

Instead, the court will apply the remedy authorized in CPLR 3126 (subd 1). It orders that the issues to which the information is relevant are deemed resolved in accordance with the claims of the petitioner. That is, if the HLA test was taken, it would tend to indicate that the respondent is the father of the child.

CPLR 3126 permits a court to deem an issue resolved against a party who refuses to submit to ordered blood testing.

Fitzgerald v. Tamola · filed 1993-12-16

The strongest inference would be, as permitted by CPLR 3126, to deem the issue resolved for purposes of the action against the party refusing to take the test.

Section 3126(1) permits a court to resolve an issue against a party whose willful failure to comply with discovery orders prejudices the opposing party.

Beatty v. First Atlantic Housing Corp. · filed 1994-11-28(1)

Accordingly, in order to adequately redress the plaintiffs for Tort’s egregious conduct in this case, the issue of notice of forseeability is resolved, as a matter of law, in their favor and against Tort (see, Zletz v Wetanson, 67 NY2d 711; CPLR 3126 [1]).

Section 3126(1) permits a court to deem an issue resolved against a party whose representative repeatedly fails to attend a court-ordered deposition without a reasonable excuse.

Rogers v. Howard Realty Estates, Inc. · filed 2016-12-28(1)

Under these circumstances, the Supreme Court providently exercised its discretion in deeming the issue of liability insofar as asserted against the defendant resolved in favor of the plaintiff (see CPLR 3126 [1]; Incorporated Vil. of Cove Neck v Petrara, 47 AD3d 885, 886-887 [2008]; Beatty v First Atl. Hous. Corp., 209 AD2d 658, 660 [1994]; Kramme v Town of Hempstead, 100 AD2d 447, 451 [1984]).

Section 3126(1) requires a pattern of deliberate, contumacious delay before a court may impose a discovery sanction that resolves an issue against a party.

Sherman v. Zampella · filed 2025-11-20(1)

A discovery sanction resolving an issue against the party from whom discovery is sought under CPLR 3126(1) is a drastic one, which requires the moving party to demonstrate "a pattern of deliberate, contumacious delay" ( Martinez v Goldrose Mgt., Inc. , 49 AD3d 466, 466 [1st Dept 2008]), as opposed to aberrant behavior in the context of otherwise substantial compliance with discovery demands, or a failure to comply based upon a mistaken interpretation of what was required to be produced ( see Vizcarrondo v Board of Educ. of City of N.Y. , 17 AD3d 144, 145 [1st Dept 2005]).

A dismissal under CPLR 3126(3) for failure to comply with a conditional preclusion order can have res judicata effect even when the order does not say it is on the merits.

Leeds v. Sturm, Ruger & Co. · filed 1984-05-29(3)

An earlier action against the defendant sounding in negligence, breach of warranty and strict liability was dismissed pursuant to CPLR 3126 (subd 3) because of plaintiffs’ failure to comply with a conditional preclusion order concerning discovery and inspection. ... In a similar set of circumstances (Barrett v Kasco Constr. Co., 56 NY2d 830, 831), the Court of Appeals has held that “although the prior judgment * * * does not specifically recite that it is ‘on the merits’, that judgment should be given res judicata effect in order to prevent the plaintiff from circumventing the preclusion decree”. We believe that Barrett is dispositive of the case at bar (see, also, Strange v Montefiore Hosp. & Med. Center, 91 AD2d 507, affd 59 NY2d 737; Schicchi v Green Constr. Corp., 100 AD2d 509; Bieniek v Miller Drug Stores, 25 AD2d 941).

A dismissal under CPLR 3126 is not a judgment on the merits unless the judgment provides otherwise.

Brown v. NEW YORK STATE SUPREME COURT · filed 2010-01-26

Notably, plaintiff at that point — even after the Court of Appeals denied him leave to appeal — was free to recommence his action in state court because a dismissal under CPLR 3126 is not a judgment on the merits unless the judgment so provides (and the judgment against plaintiff did not).

A CPLR 3126(1) discovery sanction that establishes liability does not eliminate the need to assess damages before judgment.

Rothstein v. Milgray Ltd. · filed 1990-07-10(1)

The nature of the CPLR 3126 (1) sanctions order, leading to the necessity of the intermediate step of counterclaimants’ summary judgment motion in order to insure no factual issues remained even as to liability, does not warrant omission of the assessment stage or exclusive reliance on the ad damnum clauses in the pleading involving multiple elements of damages.

When an answer is struck under § 3126(3), liability is established, but the defendant may still present evidence about the underlying transactions to determine actual damages.

Rokina Optical Co. v. Camera King, Inc. · filed 1984-09-13(3)

Plaintiff’s argument that defendant should be restrained in its ability to present evidence on the damages issue due to the alleged contumacious nature of its default is unavailing. The existence or degree of “fault” on the part of defendant — against whom liability has been conclusively established and who is precluded from asserting setoffs and counterclaims against plaintiff as a result of his default — is of no relevance to the question of plaintiff’s real damages.

When an answer is stricken under section 3126(3), the court may enter judgment without an inquest if the damages are a sum certain.

Eminent Funding, LLC v. DNA USA Corp. · filed 2026-03-04(3)

However, where an answer is stricken per CPLR § 3126 [3], the Court may enter judgment without the need for an inquest (id. at p.729). Here, plaintiff’s damages are for a sum certain, plus penalties and interest as defined by the agreement and set forth in the complaint.

CPLR 3126 permits denial of dismissal for failure to attend a further deposition when the moving party waived its right to depose by missing earlier scheduled examinations.

Bernstein v. Burson · filed 1988-06-27

The defendant now moves to dismiss because the plaintiffs have failed to appear again for examination. Under the circumstances of this case in which Mrs. Bernstein is a 75-year-old woman whose husband, the plaintiff Sidney Bernstein, is ill and confined to a nursing home, the Supreme Court did not abuse its discretion in finding that the defendant has waived his right to depose the plaintiffs (see, Jenkins v 312 W. 121st St., 30 AD2d 937).

A default judgment imposed under CPLR 3126 (3) is directly appealable because it is made on notice; the defaulting party’s remedy is an appeal rather than a motion to vacate under CPLR 5015 (a) (1).

Champion v. Wilsey · filed 1989-05-04(3)

Although characterized as a default judgment, relief granted under CPLR 3126 (3) is directly appealable (see, Pergamon Press v Tietze, 81 AD2d 831, 832, lv dismissed 54 NY2d 830; cf., CPLR 5511) because such an order or judgment is made on notice (CPLR 3215 [f] [1]), thus enabling the defaulting party to contest the motion; allowing a defaulting party to proceed by way of CPLR 5015 (a) (1) would grant him an extension of time in which to appeal, a result anathema to the legislative intent of CPLR 5513 (see, Siegel, 1981 Supp Practice Commentary, McKinney’s Cons Laws of NY, Book 7B, CPLR 5015 [1989 Supp Pamph], at 535).

A default judgment predicated on CPLR 3126 can be appealed directly.

Thermo Spas, Inc. v. Red Ball Spas & Baths, Inc. · filed 1993-12-02

While plaintiff takes issue with the propriety of this appeal relying on precedent which precludes direct appeal from a default judgment, it is well established that this mode of proceeding is proper in cases where the default is predicated upon CPLR 3126 (see, Champion v Wilsey, 150 AD2d 833, 834; see also, Banner Serv. Corp. v Hall, 185 AD2d 613).

CPLR 3126 sanctions may be denied when neither side shows diligence or good faith in complying with prior disclosure orders.

Haar v. Whalen · filed 1996-05-28

While defendant’s attorney complains about the acrimonious telephone exchange between the lawyers that took place on October 3, we note that the individual defendant failed to appear for at least two previously ordered depositions, and find that neither side has demonstrated such diligence or good faith efforts to comply with prior disclosure orders as to warrant sanctions favoring either.

CPLR 3126 permits an order of preclusion for failure to disclose but does not authorize adding a 20% penalty to the value of a party’s businesses.

Cohen v. Cohen · filed 1996-06-20

An order of preclusion was entered as a result of defendant’s failure to disclose, and we see no authority in either Domestic Relations Law § 236 (B) or CPLR 3126 for the "penalty” imposed by Supreme Court.

An order under CPLR 3126(3) is appealable because the defaulting party receives notice and can contest it.

Pinapati v. Pagadala · filed 1997-11-13(3)

An order entered pursuant to CPLR 3126 (3) is appealable because it is made on notice to the defaulting party, thereby enabling that party to contest it (see, Champion v Wilsey, 150 AD2d 833, 834).

A party whose answer is struck and against whom a default judgment is entered under CPLR 3126(3) for disobeying a deposition order must appeal the judgment rather than seek relief under CPLR 5015(a)(3).

Miller v. Lanzisera · filed 2000-06-16(3)

“However, where the default [judgment] is predicated upon CPLR 3126, an appeal of that * * * judgment is the proper and sole remedy for the defaulting party” (Pinapati v Pagadala, 244 AD2d 676, 677; see generally, Tony’s Ornamental Iron Works v National Bldg. & Restoration Corp., 237 AD2d 909). Here, the striking of defendant’s answer and the entry of a default judgment in favor of plaintiff was predicated on the failure of defendant to comply with an order compelling his appearance at a deposition (see, CPLR 3126 [3]). Thus, defendant is not entitled to relief under CPLR 5015 (a) (3).

Section 3126 does not support an immediate default judgment when the motion seeks only a conditional order compelling discovery.

Chadbourne & Parke L. L. P. v. Coleman · filed 2001-03-20

Here, plaintiffs motion only sought a conditional order; the relief granted was greater than that requested or warranted.

CPLR 3126 permits a court to address a delay in answering a bill of particulars with conditional dismissal and an award of costs.

APW, Inc. v. Marx Realty & Improvement Co. · filed 2002-02-26

The motion court exercised its discretion properly in limiting ... the sanction pursuant to CPLR 3126 for plaintiffs’ delay in answering defendants’ bill of particulars respecting plaintiffs’ claimed lost profits to a conditional dismissal and an award of costs (see, Chadbourne & Parke v Coleman, 281 AD2d 278, lv dismissed 97 NY2d 638).

Section 3126 allows dismissal or evidence preclusion for disclosure failures, but a court may deny those sanctions when willful noncompliance has not been shown.

DQS Construction & Flintlock Construction, Inc. v. Utica National Insurance Group · filed 2002-12-24

In the absence of any showing that plaintiffs had been willfully noncompliant with their disclosure obligations, the motion court properly exercised its discretion in denying defendant-appellant’s motion to sanction plaintiffs pursuant to CPLR 3126 by dismissing the complaint or, alternatively, ...precluding plaintiffs from offering evidence on damages (see Adzhiashvili v Joy-Lud Distribs., Intl., 283 AD2d 361; Rosario v New York City Hous. Auth., 272 AD2d 105, 105-106).

Section 3126(1) permits an issue resolving sanction for repeated failure to produce ordered documents or adequately explain their absence; more severe sanctions may be refused absent a clear showing of spoliation.

Longo v. Armor Elevator Co. · filed 2003-08-21(1)

The challenged resolving order (CPLR 3126 [1]) was an appropriate disclosure sanction for the Building defendants’ repeated and continuing failure to produce documents that they were ordered to produce in a decision of this Court on a previous appeal (278 AD2d 127, 129 [2000]), or to adequately explain their inability to do so (see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]; Jackson v City of New York, 185 AD2d 768, 770 [1992]). However, absent a clear showing of spoliation, we reject plaintiffs argument that other, more severe sanctions should have been imposed.

CPLR 3126 permits a court to choose an appropriate sanction for refusal to obey a disclosure order or willful failure to disclose, but the record must substantiate the violation.

Moak v. Raynor · filed 2006-04-13

CPLR 3126 authorizes a court to fashion an appropriate remedy in response to a party’s refusal to obey an order of disclosure or willful failure to disclose information, leaving the type and degree of sanction to the court’s discretion ... Under the circumstances, the record fails to substantiate any willful disclosure violations requiring sanctions.

CPLR 3126 sanctions require a demonstrated disclosure failure.

Young's L&M Construction, Inc. v. Kelley · filed 2006-07-17

Defendants have not demonstrated that sanctions should be awarded, including because CPLR 3126 is a disclosure provision and defendants did not demonstrate any disclosure failure by plaintiff in this action.

A CPLR 3126 sanction directing production of tax returns is improper when the requesting party fails to show that their disclosure is warranted.

Panasuk v. Viola Park Realty, LLC · filed 2007-06-26

that branch of the plaintiffs’ cross motion which was pursuant to CPLR 3126 for the imposition of a sanction upon the defendants for failure to comply with a disclosure order is denied; ... Here, the plaintiffs failed to sustain their burden in this regard by showing that the disclosure of the defendants’ tax returns for the years 2002, 2003, and 2004 was warranted (cf. Manzella v Provident Life & Cas. Co., 273 AD2d 923, 923-924 [2000]). Accordingly, the Supreme Court improvidently exercised its discretion in directing the defendants to provide such disclosure.

Section 3126 permits a monetary sanction when a party unreasonably delays disclosing that evidence has been destroyed while the opposing party seeks to compel its production.

Dean v. Campagna · filed 2007-10-02

However, in light of the plaintiffs 10-month delay in informing the Supreme Court and the defendants that the T-Rex had been negligently destroyed, a delay for which he offered no reasonable excuse, and during which time the defendants sought judicial intervention to compel production of the T-Rex, a monetary sanction against the plaintiff in the sum of $5,000 is warranted (see CPLR 3126; Denoyelles v Gallagher, 40 AD3d 1027 [2007]; O’Neill v Ho, 28 AD3d 626 [2006]; Garan v Don & Walt Sutton Bldrs., Inc., 27 AD3d 521, 523 [2006]; Jacobs v Macy’s E., Inc., 17 AD3d 318 [2005]; Carella v Reilly & Assoc., 297 AD2d 326 [2002]; Smith v New York Tel. Co., 235 AD2d 529, 530 [1997]; Athanasiou v First Natl. City Bank US Corp., 225 AD2d 726 [1996]).

CPLR 3126 permits disclosure sanctions, but striking a pleading requires willful and contumacious noncompliance.

Negro v. St. Charles Hospital & Rehabilitation Center · filed 2007-10-09

However, CPLR 3126 authorizes the imposition of disclosure sanctions, including the striking of all or a portion of a pleading, where a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds out ought to have been disclosed.” ... Here, the record does not support a finding that the failure to comply was willful and contumacious. Indeed, the disclosure at issue was only a portion of the voluminous disclosure demanded and otherwise provided. Rather, the failure appears to result from the disorganization and ineptitude of the plaintiff’s counsel. Consequently, the Supreme Court improvidently exercised its discretion in dismissing the complaint insofar as asserted against Dr. Kurtz.

CPLR 3126 permits discovery sanctions for failure to comply with disclosure orders, including conditional preclusion and monetary sanctions.

Garcia v. Defex · filed 2009-02-05

Contrary to plaintiffs contention, the court sufficiently set forth the conduct resulting in the sanctions, which were imposed pursuant to CPLR 3126, and not part 130 of the Rules of the Chief Administrator of the Courts (22 NYCRR part 130) (see Arts4All, Ltd., 54 AD3d at 290).

Section 3126 allows disclosure sanctions, but a party may waive them by waiting until trial to move for them.

Dezer Properties 4, LLC v. Brody · filed 2010-08-09

Landlord effectively waived any right to seek such sanctions, since landlord failed to move for sanctions under CPLR 3126 at the appropriate time (i.e., prior to trial)* and instead waited until the commencement of trial, four months after the proceeding was restored to the trial calendar, before making its in limine application (see Brown v Veterans Transp. Co., 170 AD2d 638 [1991]).

Section 3126 does not provide a default judgment or other disclosure relief where the party seeking it fails to establish a violation of a court order or a willful failure to comply with a disclosure request.

BARNES, JESSIE J. v. HARLING, RONALD · filed 2012-06-08

Petitioner failed to establish that respondent ever violated a court order or willfully failed to comply with his disclosure request, and thus he is not entitled to a default judgment or any other relief based on any alleged violation or willful failure to comply with his disclosure request (see CPLR 3126; Matter of Seneca Foods Corp. v Jorling, 168 AD2d 967, 968, lv denied 77 NY2d 808).

A party seeking sanctions under CPLR 3126 must establish entitlement to them.

Matter of Berlin · filed 2016-01-13

Finally, the Surrogate’s Court correctly found that Martin had not established his entitlement to sanctions against Leonard pursuant to CPLR 3126 (see Brandenburg v County of Rockland Sewer Dist. #1, State of N.Y., 127 AD3d 680, 681 [2015]; Palmieri v Piano Exch., Inc., 124 AD3d 611, 612 [2015]; Dimoulas v Roca, 120 AD3d 1293, 1295 [2014]; Commisso v Orshan, 85 AD3d 845 [2011]).

CPLR 3126 permits a court to strike a pleading when a party disobeys a disclosure order or wilfully fails to disclose required information.

Brannigan v. Christie Overhead Door · filed 2016-11-23

A court is authorized to impose disclosure sanctions, including the striking of all or a portion of a pleading, where a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126; see Kihl v Pfeffer, 94 NY2d 118, 122 [1999]; Negro v St. Charles Hosp. & Rehabilitation Ctr., 44 AD3d 727, 728 [2007]).

Section 3126 permits sanctions for willful failure to comply with disclosure obligations, but a sanctions motion must be made before the note of issue and certificate of readiness is filed.

Moss v. Mount Sinai Beth Israel · filed 2024-12-05

Although the plaintiff now argues that the defendants should be precluded from opposing her motion as a sanction for their alleged failures to respond to or comply with outstanding discovery demands or orders, under most circumstances, including those obtaining in this case, a motion pursuant to CPLR 3126 to impose sanctions for the willful failure to make disclosure must be made prior to the filing of the note of issue and certificate of readiness since, by that filing, a party represents that all discovery has been completed and that there are no outstanding discovery requests (see Flanagan v Wolff, 136 AD3d 739, 741 [2d Dept 2016]). The failure to make a motion pursuant to CPLR 3126 prior to the filing of the note of issue and certificate of readiness is deemed a waiver of any contention that an adverse party has failed to meet his or her disclosure obligations (see id.; K-F/X Rentals & Equip., LLC v FC Yonkers Assoc., LLC, 131 AD3d 945, 946 [2d Dept 2015]; Marte v City of New York, 102 AD3d 557, 558 [1st Dept 2013]; Rivera-Irby v City of New York, 71 AD3d 482, 482 [1st Dept 2010]).

Section 3126 permits sanctions for failure to comply with disclosure obligations, but does not support striking allegations or precluding evidence when a bill of particulars permissibly amplifies existing claims.

Scheffer v. State of New York · filed 2025-10-14

Where a party fails to comply with disclosure obligations, including court orders compelling a proper bill of particulars, CPLR 3126 authorizes the court to impose sanctions ranging from preclusion of evidence to dismissal of the action. ... Defendant's attempt to preclude trial evidence or strike portions of the pleadings on this basis is procedurally and substantively unsupported.

Section 3126(3) permits a court to strike pleadings or enter a default judgment for refusal to comply with a disclosure order, and the resulting judgment is appealable.

Pergamon Press, Inc. v. Tietze · filed 1981-05-04(3)

CPLR 3126 (subd 3) provides, as a penalty for refusal to comply with an order to disclose, that a court may make “an order striking out pleadings or parts thereof *** or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.” That a default can thus occur is confirmed by the language of CPLR 3215 (subd [a]). However, although such a judgment may be categorized as a “default judgment”, it is appealable (see Shier v President Land Co., 248 App Div 640; Cinelli v Radcliffe, 35 AD2d 829; Shaw v Stewart Franklin Apt., 49 AD2d 892; Shamash v Ohrbach’s Inc., 57 AD2d 531).

Section 3126 permits sanctions, including striking an answer, for contributing to undisputed untruthfulness in the record.

317 W. 87 Assocaites v. Dannenberg · filed 1990-03-08

Contributing to "undisputed untruthfulness” on the record ... justifies imposition of sanctions under CPLR 3126.

Section 3126 permits sanctions for creating and using fraudulent evidence in a lawsuit.

317 West 87 Associates v. Dannenberg · filed 1991-02-14

The sanctions were also appropriate under CPLR 3126.

CPLR 3126 sanctions may apply when relevant evidence is destroyed before a disclosure notice or order, but striking a pleading was unwarranted where the evidence was irrelevant and deliberate disposal in anticipation of litigation was not shown.

Hallock v. Bogart · filed 1994-07-21

The fact that relevant information is destroyed before a notice or order to produce is served does not preclude application of sanctions under CPLR 3126 (see, Strelov v Hertz Corp., 171 AD2d 420). ... Nevertheless, even assuming that the provisions of CPLR 3126 are applicable to the facts of this case, the record is bereft of any evidence that defendants deliberately disposed of the battery charger knowing that it would be required in future litigation. Furthermore, we agree with defendants that the existence of the battery charger is not relevant to the issues at bar.

Section 3126 allows a court to deny severe sanctions for destroyed evidence and order narrower disclosure when the circumstances do not justify striking a pleading or precluding a defense.

Anderson v. Avis Rent A Car System, Inc. · filed 1997-11-17

Even then plaintiffs did not act until April of 1996 in the making of the present motion wherein they request pursuant to CPLR 3126 that Avis’ answer be stricken or alternatively that Avis be precluded from using the seat belt defense as a sanction for its deliberate spoliation of evidence. ... Striking Avis’ answer or precluding its use of the seat belt defense in its entirety are sanctions that are too severe considering the unique factors presented by this case, where the evidence that was destroyed would have in all likelihood supported the defendant’s position.

Section 3126 permits sanctions for negligent or nonintentional destruction of evidence, but whether to impose them depends on the circumstances.

Popfinger v. Terminix International Co. · filed 1998-06-22

The defendant failed to demonstrate that the plaintiffs action was an intentional attempt to hide or destroy evidence. Furthermore, while sanctions may be imposed for negligent or nonintentional destruction of evidence (see, Kirkland v New York City Hous. Auth., 236 AD2d 170), we find that the imposition of sanctions is inappropriate here.

CPLR 3126 permits a court to preclude trial evidence when a party deliberately destroys requested evidence without an exculpatory explanation.

Livingston v. State · filed 1998-10-02

By destroying the videotapes and failing to provide an exculpatory explanation, and by refusing to comply with claimant’s discovery requests, defendant has engaged in deliberate conduct that warrants the imposition of a sanction pursuant to CPLR 3126. The Court of Claims therefore abused its discretion in denying claimant’s motion for sanctions. We grant claimant’s motion and preclude defendant from offering any evidence at trial in opposition to claimant’s proof with respect to the incidents that were the subject of the destroyed videotapes.

CPLR 3126 permits courts to strike a pleading when a party destroys evidence crucial to the case before the opposing party can inspect it, even if the destruction was negligent.

Puccia v. Farley · filed 1999-12-09

It is by now 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 (see, e.g., Matthews v McDonald, 241 AD2d 808; Matter of Cullen, 143 AD2d 746). ... Since circumstantial evidence will not be sufficient to prove whether defendant negligently installed the wood stove, we can find no abuse of discretion in the determination to strike the pleading (see, Mudge, Rose, Guthrie, Alexander & Ferdon v Penguin Air Conditioning Corp., 221 AD2d 243).

A court may deny dismissal or evidence preclusion under Section 3126 when the loss of evidence is not shown to be willful, contumacious, or in bad faith.

Gomez v. Metro Terminals Corp. · filed 2001-01-22

The Supreme Court providently exercised its discretion in denying the appellants’ motion. The appellants did not show that the plaintiff’s loss of certain magnetic resonance imaging (hereinafter MRI) films was willful, contumacious, or in bad faith (see, CPLR 3126; cf., Birch Hill Farm v Reed, 272 AD2d 282).

CPLR 3126 permits an adverse inference charge when a party fails to preserve relevant evidence and dismissal would be too drastic.

Campbell v. Tracey Road Equipment, Inc. · filed 2001-11-09

We conclude, however, that dismissal of the complaint was too drastic a sanction in the circumstances of this case and that defendant instead is entitled to an adverse inference charge with respect to the missing evidence. Consequently, we modify the order by reinstating the complaint and imposing the sanction of an adverse inference charge with respect to plaintiffs failure to preserve the replaced bolts and center axle pin.

Section 3126 sanctions for destroyed evidence depend on the resulting prejudice and fairness; destruction without bad faith may not warrant striking a complaint or precluding evidence.

Bannon v. Auerbach · filed 2004-09-14

However, in determining whether to impose sanctions for a party’s disposal or destruction of evidence, the court must look to the extent the spoliation of evidence prejudiced the other party and whether striking the plaintiffs’ complaint will be necessary as a matter of elementary fairness. ... It is apparent that the actions of the plaintiffs’ expert which resulted in the destruction of samples were not done in bad faith to warrant so severe a sanction as striking the complaint or preclusion.

Section 3126 sanctions for lost evidence depend on the circumstances, including whether the loss was intentional and whether the opposing party had an earlier opportunity to examine the evidence.

Quinn v. City University of New York · filed 2007-09-13

Under all the relevant circumstances, neither striking the answer nor precluding defendant from offering evidence at trial is warranted (see Kirschen v Marino, 16 AD3d 555 [2005]; see also Hussain v Nowak, 38 AD3d 1342 [2007]).

Section 3126 permits a court to impose just sanctions when a party destroys evidence that should have been disclosed.

Ortega v. City of New York · filed 2007-10-16

Under CPLR 3126, if a court finds that a party destroyed evidence that “ought to have been disclosed . . . , the court may make such orders with regard to the failure or refusal as are just.”

Section 3126 permits a court to deny sanctions for lost evidence when the evidence was not crucial and its loss caused no prejudice.

Stroppel v. Wal-Mart Stores, Inc. · filed 2008-07-29

The Supreme Court providently exercised its discretion in denying that branch of the plaintiffs’ cross motion which sought to impose sanctions for the defendant’s failure to preserve the log of “safety sweep” announcements made on the day of the plaintiffs injury. ... Inasmuch as the discovery provided by the defendant indicated that no one was assigned to the area of the store where the incident occurred, the log of announcements was not crucial evidence and the plaintiffs were not prejudiced by the defendant’s failure to preserve it.

Section 3126 does not warrant a sanction for lost evidence that is not central to the case and does not prejudice the opposing party.

Jennosa v. Vermeer Manufacturing Co. · filed 2009-07-14

Moreover, under the circumstances of this case, Governale’s loss of the undeveloped film of the post-accident scene did not warrant the Supreme Court’s determination that he was precluded from offering certain evidence at trial and allowing an adverse inference charge against him. ... Under these circumstances, Governale’s loss of the post-accident photographs did not warrant the imposition of a sanction.

Section 3126 permits a court to strike a pleading when clear and convincing evidence establishes fraud on the court; the sanction is discretionary.

Williams v. Scafidi · filed 2022-05-12(3)

Under CPLR 3126, "where a court finds, by clear and convincing evidence, conduct that constitutes fraud on the court, the court may impose sanctions including . . . striking pleadings and entering default judgment against the offending part[y]" ( CRD CrÉances S.A.S. v Cohen , 23 NY3d at 318; see CPLR 3126 [3]). ... We recognize that striking defendant's answer was a drastic remedy, but conclude that Supreme Court acted within its discretion and struck an appropriate balance by holding defendant accountable for her willful and repeated conduct, while leaving the counterclaims intact ( see CRD CrÉances S.A.S. v Cohen , 23 NY3d at 318; 317 W. 97 Assoc. v Dannenberg , 159 AD2d 245, 245-246 [1990]; compare Melcher v Apollo Med. Fund Mgt. L.L.C. , 105 AD3d 15, 21, 24 [2013]).

CPLR 3126 permits an adverse inference and preclusion when a party fails to preserve relevant evidence after being put on notice that it may be needed for litigation.

Mangual v. New Life Sch. · filed 2026-01-29

The motion court providently exercised its discretion by issuing an adverse inference charge at trial "instructing the jury that the missing surveillance footage and nurse's notes would have been unfavorable" to defendants and precluding defendants from "offering any testimony or argument disputing the contents of the missing surveillance footage and nurse's report." Defendants were on notice as of the date of the incident that these items might be needed for future litigation but failed to take affirmative steps to preserve them ( see generally CPLR 3126; see also Ellis v JPMorgan Chase Bank , 190 AD3d 413, 414 [1st Dept 2021]; Macias v ASAL Realty, LLC , 148 AD3d 622, 622 [1st Dept 2017]; Maiorano v JPMorgan Chase & Co. , 124 AD3d 536, 536 [1st Dept 2015]).

Section 3126 permits dismissal for alleged fraud on the court when clear and convincing evidence shows a willful and pervasive scheme that prejudiced the opposing party's defense.

Southerland v. Tavern · filed 2025-09-25

Order, Supreme Court, New York County (Leslie A. Stroth, J.), entered on or about November 15, 2024, which, to the extent appealed from, denied defendant Keith Zachary Latimer's motion to dismiss the complaint pursuant to CPLR 3126 on the ground that plaintiff committed fraud upon the court, for summary judgment dismissing the complaint, or to preclude plaintiff from introducing any evidence at trial concerning the alleged injury to her neck, and for an award pursuant to 22 NYCRR 130-1.1 of legal fees, costs, and disbursements, unanimously affirmed, with costs. The court providently exercised its discretion in denying defendant's motion to dismiss the complaint on the ground that plaintiff committed a fraud upon the court. Defendant's contention that plaintiff forfeited her claims is unsupported by clear and convincing evidence that she engaged in a willful and pervasive scheme to defraud the court such that defendant's ability to defend against the claims was prejudiced ( see Napoli v Bern , 171 AD3d 489, 489-490 [1st Dept 2019]).

Section 3126 does not apply to a DEC administrative proceeding unless DEC adopts it into its adjudicatory process.

Seneca Foods Corp. v. Jorling · filed 1990-12-21

The DEC has not adopted the provisions of CPLR 3126 into its adjudicatory process nor is it required to do so (see, State Administrative Procedure Act § 305; Matter of Heim v Regan, 90 AD2d 656, 657). Consequently, that provision is not applicable to this administrative proceeding.

Section 3126 applies to summary proceedings.

Bldg Management Co. v. Meija · filed 2011-06-03

This court finds that CPLR 3126 is applicable to summary proceedings.

Section 3126 does not authorize dismissal in this case for failure to supplement a bill of particulars.

Dell'Aquila v. Supermarkets General Corp. · filed 1992-02-18

CPLR 3126, concerning willful failure to make disclosure, provides no authority for dismissal in this case.

Section 3126(3) permits dismissal when a party willfully fails to provide a sufficiently detailed bill of particulars despite repeated court orders.

Roth v. South Nassau Communities Hospital · filed 1997-05-05(3)

We find no improvident exercise of discretion in the dismissal of the complaint as against the respondents. Over the course of approximately three years and despite several court orders outlining deficiencies in their bills of particulars, the plaintiffs failed to serve a properly detailed bill of particulars on each respondent. The willfulness of the plaintiffs’ conduct can be inferred from the record (see, CPLR 3126 [3]; Argenio v Cushman & Wakefield, 227 AD2d 578; Porreco v Selway, 225 AD2d 752).

Section 3126 permits a court to preclude evidence at trial unless a party supplies requested particulars of its claims.

Jones v. LeFrance Leasing Limited Partnership · filed 2009-04-21

Accordingly, unless the plaintiffs particularize the specific acts of negligence which precipitated the purported defective condition, the specific defect alleged, and the creation of the alleged defective condition, as requested in items 7, 10, 15, 16, 18, 20, and 21 of the demand, they will be precluded from adducing any evidence at trial with respect thereto (see Laukaitis v Ski Stop, 202 AD2d 554, 556 [1994]; Ferrigno v General Motors Corp., 134 AD2d at 481).

CPLR 3126 permits a party to seek an order compelling disclosure with sanctions without first moving for an order under CPLR 3124.

In re T./P. Children · filed 1995-06-06

Accordingly, the court holds that the respondent was not first required to move pursuant to CPLR 3124 to enforce her CPLR 3120 discovery demands but could apply directly, pursuant to CPLR 3126, for an order to compel with sanctions.

Section 3126 permits the court to direct a party to provide an authorization for relevant cellular telephone records in response to a motion to compel their production.

Mendives v. Curcio · filed 2019-07-24

Accordingly, the Supreme Court providently exercised its discretion in denying the defendant's motion pursuant to CPLR 3103 for a protective order against production of the subject cellular telephone records, and in granting that branch of the plaintiff's motion which was pursuant to CPLR 3126 to compel production of those records to the extent of directing the defendant to provide an authorization to obtain the defendant's cellular telephone records for the date of the subject accident between 4:00 p.m. and 7:00 p.m.

A court may deny a motion to strike an answer under CPLR 3126 when the movant has not first moved to compel discovery under CPLR 3124.

Odiorne v. Jascor, Inc. · filed 2019-08-22

Initially, we reject plaintiffs' contention that Supreme Court erred in denying their cross motion to strike the answer pursuant to CPLR 3126 based on defendant's alleged failure to provide certain discovery. We conclude that the court properly denied the cross motion because plaintiffs did not file a motion to compel discovery pursuant to CPLR 3124 ( see J.N.K. Mach. Corp. v TBW, LTD. , 155 AD3d 1611, 1614 [4th Dept 2017]).

Section 3126 sanctions are unavailable when no prior court order directed the requested disclosure.

Marcos v. 410 W. 207th Acquisition LLC · filed 2024-09-20

In this case, as there are no prior Court orders directing the disclosure of information sought here, sanctions under CPLR 3126 are unavailable (See Emigrant Mortg. Co., Inc. v Beckerman, 105 AD3d 895, 896 [2d Dept 2013]).

Section 3126 penalties do not apply to notices to admit under CPLR 3123, which is self-executing.

Glasser v. City of New York · filed 1999-10-25

Contrary to the plaintiffs claims, CPLR 3123 is self-executing, and the penalties embodied in CPLR 3126 do not apply (see, Matter of T. / P. Children, 165 Misc 2d 333, 334; Spawton v Strates Shows, 75 Misc 2d 813, 815).

Section 3126(3) does not authorize striking an answer for an inadequate response to a notice to admit; the remedy is recovery of the expense of proving the fact at trial.

Rojas v. City of New York · filed 2006-03-21(3)

While defendant correctly argues that the remedy for an inadequate response to a notice to admit is recovery of the expense of proving the fact at trial (CPLR 3123 [c]), not a striking order (CPLR 3126 [3]), it incorrectly argues that the motion court addressed itself to the notice to admit and not the stipulation.

CPLR 3126 permits sanctions for lost evidence, but preclusion is unwarranted when the loss causes no prejudice because the evidence had already lost its testable value.

Holland v. W.M. Realty Management, Inc. · filed 2009-07-14

Under the peculiar facts of this action, the Supreme Court should have granted that branch of the plaintiffs’ motion which was for leave to renew his earlier opposition, and, upon renewal, the prior order of preclusion should have been vacated. It was uncontested that the mold samples taken in 2002 had a testable “shelf life” of only six months. That being the case, the destruction of the swabbed mold samples caused no prejudice to the defendant inasmuch as those samples had quickly and naturally lost their testable value (see Bannon v Auerbach, 6 Misc 3d 219, 220-221 [2004]).

Section 3126 permits evidence preclusion and an adverse inference instead of dismissal when the loss of evidence prejudices a defendant but does not prevent it from defending the action.

Utica Mutual Insurance v. Berkoski Oil Co. · filed 2009-01-20

Ordered that the order is modified, on the facts and in the exercise of discretion, by deleting the provisions thereof granting the motions to dismiss the complaint and substituting therefor provisions granting the motions only to the extent of precluding the plaintiff from offering evidence at trial based upon any inspection of the subject pipe, and directing that an adverse inference charge be given at trial, and otherwise denying the motions; as so modified, the order is affirmed, with one bill of costs to the plaintiff.

Section 3126 does not warrant precluding a party from offering evidence as a spoliation sanction when the opposing party still has the means to prove its claim.

Barone v. City of New York · filed 2008-06-17

However, since the record does not demonstrate that the plaintiff, who can testify at trial about how the accident occurred, has been left without the means to prove his claim, the Supreme Court improvidently exercised its discretion in imposing this drastic sanction (see Kerman v Martin Friedman, C.P.A., P.C., 21 AD3d 997, 999 [2005]).

Dismissal under CPLR 3126 (3) for failure to preserve crucial evidence requires a showing that the failure was intentional or negligent and occurred after notice that the evidence might be needed for future litigation.

Ku Sung Lee v. Leybman · filed 2008-05-06(3)

The Supreme Court further erred in granting that branch of the defendant’s oral application which was to dismiss the complaint pursuant to CPLR 3126 (3). The defendant did not establish that the plaintiff intentionally or negligently failed to preserve crucial evidence after being placed on notice that the evidence might be needed for future litigation (see Lovell v United Skates of Am., Inc., 28 AD3d 721 [2006]).

Section 3126(3) does not warrant striking pleadings for spoliation when conflicting expert evidence leaves the resulting prejudice undetermined.

Kreusi v. City of New York · filed 2007-05-15(3)

However, in light of the parties’ engineers’ conflicting affidavits, the extent of prejudice that HMI might have suffered as a result of the subject chair’s destruction cannot be determined at this stage of the proceedings. Under these circumstances, we find that upon renewal, HMI is still not entitled to the relief sought on the prior motion (see CPLR 2221 [e] [2]; cf. Duffy v Kokolakis Contr., supra at 446).

A court may decline to strike an answer under CPLR 3126 when the moving party fails to show conduct warranting that sanction.

Yechieli v. Glissen Chemical Co. · filed 2007-05-22

The plaintiffs failed to demonstrate conduct on the part of the defendant City of New York which would warrant striking its answer pursuant to CPLR 3126 or based upon spoliation of evidence (see Mylonas v Town of Brookhaven, 305 AD2d 561, 562-563 [2003]; Foncette v LA Express, 295 AD2d 471, 472 [2002]; Birch Hill Farm v Reed, 272 AD2d 282, 283 [2000]).

CPLR 3126 permits a less severe sanction for spoliation when the missing evidence does not prevent the moving party from proving its case or defense.

Molinari v. Smith · filed 2007-04-10

A less severe sanction is appropriate where the missing evidence does not deprive the moving party of the ability to establish his or her case or defense (see De Los Santos v Polanco, supra; Iannucci v Rose, supra).

Section 3126(3) permits preclusion for spoliation when a party intentionally or negligently fails to preserve crucial evidence after notice that it may be needed in litigation.

Kelley v. Empire Roller Skating Rink, Inc. · filed 2006-11-14(3)

Here, however, the Supreme Court improvidently exercised its discretion when it imposed a sanction of preclusion based upon the alleged spoliation of evidence “because the plaintiff[s] did not establish that the defendant[s] intentionally or negligently failed to preserve crucial evidence after being placed on notice that the evidence might be needed for future litigation” (Lovell v United Skates of Am., Inc., 28 AD3d 721 [2006]; see Goll v American Broadcasting Cos., Inc., 10 AD3d 672, 673 [2004]; Andretta v Lenahan, 303 AD2d 527, 528 [2003]).

Dismissal for spoliation under CPLR 3126 is too drastic when the opposing party still has evidence to defend its position.

McMahon v. Ford Motor Co. · filed 2006-11-09

Nevertheless, “dismissal would be too drastic a remedy where defendants are not entirely bereft of evidence tending to establish their position” (Cohen Bros. Realty v Rosenberg Elec. Contrs., 265 AD2d 242, 244 [1999], lv dismissed 95 NY2d 791 [2000]).

Section 3126 permits dismissal for lost key evidence, but the party seeking that sanction must show negligent or intentional spoliation.

Barahona v. Trustees of Columbia University · filed 2005-03-14

The Supreme Court providently exercised its discretion in denying that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3126, which was based upon the plaintiffs loss of the sneakers he was wearing when he fell down a staircase on the defendant’s property (see Iannucci v Rose, 8 AD3d 437 [2004]). Assuming that the sneakers represented “key evidence” in this case, the defendant failed to demonstrate that the plaintiffs loss of the sneakers constituted either negligent or intentional spoliation (see Goll v American Broadcasting Cos., Inc., 10 AD3d 672 [2004]; Andretta v Lenahan, 303 AD2d 527 [2003]; Kulhan v Minxray, 255 AD2d 364 [1998]).

Section 3126 permits a court to use an adverse inference instruction as a remedy for lost evidence and gives the trial court discretion to reject a harsher sanction.

Allain v. Les Industries Portes Mackie, Inc. · filed 2005-03-17

Under these circumstances, we are satisfied that the adverse inference instruction given to the jury was an appropriate remedy and the court did not abuse its discretion in rejecting plaintiffs’ request for a harsher sanction (see e.g. Lawrence Ins. Group v KPMG Peat Marwick, 5 AD3d 918 [2004]; Barber v Kennedy Gen. Contrs., 302 AD2d 718 [2003]).

CPLR 3126 permits dismissal when a party negligently loses key evidence needed for the opposing party’s defense.

Neal v. Easton Aluminum, Inc. · filed 2005-02-14

The Supreme Court should have granted the defendants’ motions to dismiss based on the plaintiffs negligent loss of a key piece of evidence which is crucial to the defense of this matter (see Baglio v St. John’s Queens Hosp., 303 AD2d 341, 342 [2003]; Horace Mann Ins. Co. v E.T. Appliances, 290 AD2d 418, 419 [2002]; Behrbom v Healthco Intl., 285 AD2d 573, 574 [2001]; Stoebe v Norton, 272 AD2d 318, 319 [2000]; Yi Min Ren v Professional Steam-Cleaning, 271 AD2d 602, 603 [2000]; DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, 53 [1998]).

Section 3126 does not warrant striking an answer for spoliation when records were disposed of in compliance with regulatory requirements before the opposing party raised the theory for which they were sought.

Hemingway v. New York City Health & Hospitals Corp. · filed 2004-12-20

Since the defendant hospital disposed of the subject blood donor records in a manner consistent with regulatory requirements (see 10 NYCRR 58-2.10 [a]), and before the plaintiffs’ negligent screening theory was raised, the denial of that branch ... of the plaintiffs’ cross motion which was to strike the answers based upon the spoliation of evidence was proper (see Smith v New York City Health & Hosps. Corp., 284 AD2d 121 [2001]; see generally Kirkland v New York City Hous. Auth., 236 AD2d 170 [1997]).

CPLR 3126 does not warrant a spoliation sanction when the discarded item was not key evidence that should have been preserved.

State Farm Insurance v. Amana Refrigeration, Inc. · filed 1999-11-15

The defendants’ contention that its defense was compromised because of the spoliation of evidence is without merit. The toaster oven, which the defendants contend was an alternative cause of the fire, was not a key piece of evidence that should have been preserved (see, Kirkland v New York City Hous. Auth., 236 AD2d 170).

Section 3126 allows sanctions for lost evidence, but dismissal depends on whether the party was responsible for its loss and whether the loss prejudiced the opposing party.

Hartford Fire Insurance v. Regenerative Building Construction, Inc. · filed 2000-04-20

Under the circumstances herein, it cannot be presumed that plaintiff is the party responsible for the disappearance of such evidence or, more importantly, that it was discarded by plaintiff in an effort to frustrate discovery. Furthermore, we note that it has not been sufficiently established in this record that Alltek’s defense of the action will be prejudiced by its inability to examine the ruptured pipes. Therefore, we cannot say that Supreme Court clearly abused its discretion in denying Alltek’s motion.

Section 3126 allows a court to strike a pleading for spoliation of evidence, but striking was improper where the opposing party had examined and repaired the machine after the accident.

Roman v. North Shore Orthopedic Ass'n, P. C. · filed 2000-04-24

In light of the fact that MRL examined and repaired the machine after the accident, the Supreme Court improvidently exercised its discretion in granting the motion of MRL to strike the third-party complaint insofar as asserted against it.

CPLR 3126(3) permits dismissal of a complaint as a sanction for failing to preserve a vehicle involved in an accident.

Stoebe v. Norton · filed 2000-05-01(3)

The Supreme Court providently exercised its discretion in granting that branch of the motion of the defendants Mitsubishi Motors Corporation, Chrysler Motors Corporation, and Chrysler Corporation (hereinafter Mitsubishi) which was pursuant to CPLR 3126 (3) to dismiss the complaints in Action No. 1 and Action No. 4 insofar as asserted against Mitsubishi as a sanction for the failure to preserve the vehicle involved in the accident, which had been manufactured and distributed by Mitsubishi (see, Short v Bombardier Inc., 269 AD2d 522; DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41; Kirkland v New York City Hous. Auth., 236 AD2d 170).

A motion to dismiss under CPLR 3126 based on alleged spoliation of evidence may be denied.

Ahmad v. Babylon Ford, Inc. · filed 2000-10-10

The Supreme Court properly denied the defendant’s motion pursuant to CPLR 3126 to dismiss the complaint which was based on the plaintiffs’ alleged spoliation of evidence (see, Gallo v Bay Ridge Lincoln Mercury, 262 AD2d 450; Popfinger v Terminix Intl. Co. Ltd. Partnership, 251 AD2d 564; see also, Prasad v B.K. Chevrolet, 184 AD2d 626).

CPLR 3126 permits a court to strike a defendant’s answer for spoliation of evidence.

Velasquez v. Brocorp., Inc. · filed 2001-05-07

The Supreme Court providently exercised its discretion in granting the plaintiffs motion pursuant to CPLR 3126 to strike the defendants’ answer based on the defendants’ spoliation of evidence (see, DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41; cf., Abenante v Star Gas Corp., 278 AD2d 438).

Section 3126 does not support sanctions for routine destruction of work records without evidence of spoliation or an effort to frustrate discovery in actual or contemplated litigation.

Roberts v. Consolidated Edison of New York, Inc. · filed 2000-06-19

There was no evidence that the Village’s practice of routinely destroying its work records was either spoliation or an effort to frustrate discovery in any actual or contemplated litigation (cf., Kirkland v New York City Hous. Auth., 236 AD2d 170).

Section 3126 permits dismissal when a party deliberately destroys relevant evidence in bad faith and substantially prejudices an opponent’s ability to defend.

Sage Realty Corp. v. Proskauer Rose L. L. P. · filed 2000-09-07

Accordingly, the order of the Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered February 17, 2000, which, to the extent appealed from, granted the motion of defendants Proskauer Rose L. L. P. and Nomura Securities International, Inc. to dismiss the complaint pursuant to CPLR 3126, with the exception of plaintiffs’ conflict of interest claims against Proskauer, should be affirmed, with costs.

CPLR 3126 sanctions may be denied when the requesting party fails to show that the requested materials exist.

Papa v. Russo · filed 2001-01-11

As a final matter, we are unpersuaded that Supreme Court abused its discretion in denying plaintiffs’ cross motion for a spoliation hearing and/or sanctions. Notably, plaintiffs have failed to demonstrate that the requested materials actually exist and the bulk of their demands relate to documents relative to the original design and construction of the arena.

Section 3126 permits striking a complaint when a plaintiff’s alteration or removal of physical evidence deprives a defendant of a fair opportunity to defend.

Goldman v. Gateway Toyota, Inc. · filed 2001-05-14

The Supreme Court properly determined that the plaintiffs post-accident repair, alteration, and removal of certain physical evidence deprived the defendant Toyota Motor Sales, U.S.A., Inc., of a fair opportunity to defend the lawsuit. Thus, striking the complaint insofar as asserted against the respondent was an appropriate sanction (see, Short v Bombardier Inc., 269 AD2d 522; DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41; Kirkland v New York City Hous. Auth., 236 AD2d 170).

Section 3126 permits a court to strike a party’s pleading as a sanction for spoliating evidence.

Long Island Diagnostic Imaging, P. C. v. Stony Brook Diagnostic Associates · filed 2001-08-06

The striking of a party’s pleading is a proper sanction for a party who spoliates evidence (see, DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, 53). Accordingly, under the circumstances of this case, the Supreme Court should have dismissed the defendants’ counterclaims and the third-party complaint to the extent indicated.

CPLR 3126 does not warrant striking an answer when a party disposes of evidence after an agreed inspection and the inspecting party did not indicate that further inspection was needed.

Dayal v. Coinmach Industries Co. · filed 2001-06-19

—Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered July 11, 2000, which, in an action for personal injuries caused by an allegedly defective washing machine, denied defendant-appellant manufacturer’s motion for summary judgment on its cross claim for common-law indemnification against defendants-respondents owners of the machine and operators of a laundry room, and denied plaintiffs cross motion pursuant CPLR 3126 to strike respondents’ answer, unanimously affirmed, without costs. ... Given this agreement, and since plaintiff did not indicate at or about the time of her inspection that a further inspection was needed, the evidence was properly preserved at least as to her.

A party seeking spoliation sanctions under CPLR 3126 need not conclusively establish that the opposing party caused the alteration of evidence.

Jones v. General Motors Corp. · filed 2001-10-04

We find merit in plaintiff’s assertion that Supreme Court erred in requiring that plaintiff “conclusively” establish that spoliation of the hood latch occurred at the hands of defendant.

Section 3126 permits dismissal when a party’s expert negligently loses crucial evidence and the loss prejudices the opposing party’s ability to inspect it.

Behrbom v. Healthco International, Inc. · filed 2001-07-23

Triweld then moved pursuant to CPLR 3126 to dismiss the complaint on the ground that the plaintiffs failed to preserve crucial evidence. The Supreme Court properly granted the motion. ... Nevertheless, under the circumstances, the plaintiffs were properly held responsible for the negligent loss of this evidence by their expert. ... No act or omission by Triweld was involved in the loss of this evidence, and clearly it has been prejudiced.

Section 3126 permits a negative inference charge instead of dismissal when spoliation was unintentional and did not prevent the opposing party from establishing its defense.

Barlow v. Werner Co. · filed 2002-06-10

Because the plaintiffs’ spoliation of evidence was unintentional and did not deprive the appellant of a means of establishing its defense, the Supreme Court providently exercised its discretion in granting the motion to dismiss the complaint based on such spoliation only to the extent of directing that a negative inference charge be given as against the plaintiffs (see DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41; Chiu Ping Chung v Caravan Coach Co., 285 AD2d 621; Popfinger v Terminix Intl. Co. Ltd. Partnership, 251 AD2d 564; Vaughn v City of New York, 201 AD2d 556).

CPLR 3126 permits a negative inference charge for spoliation instead of dismissal when the loss leaves the opposing party able to establish a claim or defense.

Marro v. St. Vincent's Hospital & Medical Center · filed 2002-05-06

The Supreme Court properly granted the motions to dismiss the complaint and cross claims pursuant to CPLR 3126 based upon the plaintiffs spoliation of evidence only to the extent of directing that the trial court give a negative inference charge against the plaintiff. ... However, a less drastic sanction than dismissal of the responsible party’s pleading may be imposed where the loss does not deprive the nonresponsible party of the means of establishing his or her claim or defense (see Chiu Ping Chung v Caravan Coach Co., 285 AD2d 621).

CPLR 3126 does not support a spoliation sanction where the evidence does not show that the party caused its disappearance to frustrate discovery, especially when the loss also prejudices that party.

O'Reilly v. Yavorskiy · filed 2002-12-16

The Supreme Court improvidently exercised its discretion in sanctioning the defendant for the spoliation of evidence. “Under the circumstances herein, it cannot be presumed that [the defendant] is the party responsible for the disappearance of such evidence or, more importantly, that it was discarded by [the defendant] in an effort to frustrate discovery” ... Moreover, we note that the defendant is also prejudiced by the loss of the tire.

Section 3126 does not warrant spoliation sanctions for evidence discarded in good faith during normal business practices before litigation or notice of a specific claim.

Bertram v. SV Danco Corp. · filed 2002-12-30

We further conclude that the court properly denied the motion of plaintiffs seeking summary judgment on liability as a sanction for defendant’s spoliation of evidence or, in the alternative, to preclude defendant from offering any evidence on liability at trial based on that spoliation of evidence (see CPLR 3126). “In the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices” (Conderman v Rochester Gas & Elec. Corp., 262 AD2d 1068, 1070).

CPLR 3126 allows dismissal for spoliation of evidence, but dismissal is a drastic remedy within the court's discretion.

Blue Ridge Insurance v. Whirlpool Corp. · filed 2003-02-10

Under the circumstances of this case, the Supreme Court providently exercised its discretion in concluding that the drastic remedy of dismissal based upon spoliation of evidence was unwarranted (see Chiu Ping Chung v Caravan Coach Co., 285 AD2d 621).

CPLR 3126 gives courts discretion to sanction a party whose intentional or, in some circumstances, negligent destruction of material evidence prevents an adversary from examining it.

Barber v. Roger P. Kennedy General Contractors, Inc. · filed 2003-02-13

Although the courts have discretion under CPLR 3126 to sanction a party who intentionally or, in certain circumstances, negligently destroys material evidence and deprives an adversary of an opportunity to examine it ... our review of the record here confirms Supreme Court’s finding that it was plaintiffs supervisor, an employee of Sherlat, who placed the stepladder in a dumpster immediately after the 1991 incident. ... Thus, we find no abuse of Supreme Court’s discretion in denying dismissal on the ground of spoliation.

Section 3126 gives courts discretion to impose a negative inference charge instead of striking an answer for spoliation of evidence.

Allstate Insurance v. Kearns · filed 2003-10-14

Under the particular circumstances of this case, the Supreme Court’s determination to impose only the sanction of a negative inference charge, rather than the harsher sanction of striking the respondents’ answer, was a provident exercise of its discretion.

Section 3126 places issues of evidence spoliation within the trial court’s purview.

Jackson v. Gas Co. · filed 2003-12-18

In any event, the issue of spoliation of evidence is within the trial court’s purview (see CPLR 3126).

Section 3126 permits a court to strike an answer when a defendant loses evidence essential to proving causation and fails to produce requested photographs.

Miller v. Weyerhaeuser Co. · filed 2004-01-08

Recognizing that plaintiffs access to the brake chamber was essential to establish causation, we find that the loss of this critical piece of evidence coupled with defendants’ failure to produce the requested photographs support Supreme Court’s determination to strike the answer pursuant to CPLR 3126.

Section 3126 gives courts discretion to sanction spoliation of evidence by striking a pleading or allowing the jury to draw a negative inference.

Lawrence Insurance Group, Inc. v. KPMG Peat Marwick L.L.P. · filed 2004-03-11

That court has discretion to impose sanctions for the spoliation of evidence by striking a party’s pleading or instructing the jury that it may draw negative inferences from the missing evidence (see CPLR 3126; PJI3d 1:77 [2003]; see e.g. Mylonas v Town of Brookhaven, 305 AD2d 561, 562-563 [2003]; Barber v Kennedy Gen. Contrs., 302 AD2d 718, 720 [2003]; Puccia v Farley, 261 AD2d 83, 85-86 [1999]).

Section 3126 does not warrant spoliation sanctions when a defendant discards items in good faith through normal business practices before litigation is pending or it has notice of a specific claim.

Woodhouse v. Bombardier Motor Corp. of America · filed 2004-03-19

With respect to the appeal from the judgment in favor of Bombardier, we reject plaintiffs contention that the court erred in declining to impose any sanctions against Bombardier for its alleged spoliation of evidence (see CPLR 3126). “In the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices” (Conderman v Rochester Gas & Elec. Corp., 262 AD2d 1068, 1070 [1999]; see Bertram v SV Danco Corp., 300 AD2d 1108, 1109 [2002]; cf. Hulett v Niagara Mohawk Power Corp., 1 AD3d 999 [2003]; Nunn v GTE Sylvania, 251 AD2d 1089 [1998]).

CPLR 3126 does not warrant dismissal for spoliation when the plaintiff was also prejudiced by the destruction and was not responsible for it.

Cruz v. Foremost Machinery Corp. · filed 2004-04-12

The Supreme Court properly denied the motion to dismiss the complaint. Although the appellant was prejudiced by the destruction of the subject machine, the plaintiff also was prejudiced thereby, and was not responsible for its spoliation ... Thus, dismissal of the plaintiffs complaint was not warranted.

CPLR 3126 spoliation sanctions require a showing of intentional destruction of evidence or negligent destruction of evidence the party had a duty to preserve.

Weiss v. Industrial Enterprises, Ltd. · filed 2004-05-03

We agree with the Supreme Court that under the circumstances presented here, the plaintiffs should not have been sanctioned for the spoliation of evidence. The defendants failed to demonstrate that the demolition of the plaintiffs’ building pursuant to mandate of the Department of Buildings was an intentional attempt to hide or destroy evidence (see Popfinger v Terminix Intl. Co. Ltd. Partnership, 251 AD2d 564 [1998]), or a negligent destruction of evidence that the plaintiffs had a duty to preserve (see Andretta v Lenahan, 303 AD2d 527 [2003]; Piazza v Great Atl. & Pac. Tea Co., 300 AD2d 381 [2002]).

CPLR 3126 spoliation sanctions are unwarranted when whether material evidence was destroyed remains a triable issue for the jury.

Marcano v. Calvary Hospital, Inc. · filed 2004-12-09

Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered March 13, 2003, which, upon plaintiffs motion pursuant to CPLR 3126 to sanction defendant for alleged spoliation of evidence, granted the motion to the extent of precluding defendant from offering evidence at trial regarding the manner in which plaintiffs accident occurred, and to the further extent of resolving the issue of liability in favor of plaintiff, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion denied. ... We reverse. The existing record presents a triable issue as to whether any spoliation of evidence actually occurred, and that issue should be submitted to the jury at trial (see PJI 1:77, 1:77.1 [2004]).

CPLR 3126 does not warrant preclusion for lost evidence when the moving party fails to show that the loss seriously impaired its ability to defend the action.

Lawson v. Aspen Ford, Inc. · filed 2005-02-28

Under the circumstances of this case, the Supreme Court properly denied the motion of the defendant Ford Motor Company (hereinafter Ford) for summary judgment dismissing the amended complaint insofar as asserted against it or, in the alternative, for an order of preclusion pursuant to CPLR 3126. Ford failed to establish that the plaintiffs’ conduct in trading in the allegedly defective leased vehicle approximately two weeks after the subject accident fatally compromised its ability to defend this action (see Ifraimov v Phoenix Indus. Gas, 4 AD3d 332 [2004]).

CPLR 3126 permits dismissal for spoliation of evidence, but the court has discretion to deny that sanction.

Gerber v. Rosenfeld · filed 2005-05-31

Under the facts of this case, the Supreme Court providently exercised its discretion in denying that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3126 on the ground of spoliation of evidence (see McLaughlin v Brouillet, 289 AD2d 461 [2001]).

CPLR 3126 permits preclusion of evidence and a negative inference charge for spoliation when the loss does not warrant striking a pleading.

Santos v. Polanco · filed 2005-08-08

Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiffs’ motion pursuant to CPLR 3126 to strike the defendants’ answer for their spoliation of evidence only to the extent of precluding them from offering any evidence on the issue of the point of impact of the vehicles involved in the accident and directing that a negative inference charge be given at trial regarding the destruction of the police vehicle involved in the accident.

CPLR 3126 does not permit dismissal for spoliation of evidence when the loss does not prejudice the opposing parties.

Crane v. Jab Realty, LLC · filed 2005-10-31

Because the respondents were not prejudiced by the loss of the ladder, as it was not in the same condition as at the time of the accident, the Supreme Court improperly granted the motion to dismiss the third-party and second third-party complaints based upon spoliation of evidence (see Klein v Ford Motor Co., 303 AD2d 376 [2003]; Romano v Scalia & DeLucia Plumbing, 280 AD2d 658 [2001]).

CPLR 3126 does not warrant a spoliation sanction when a party disposes of evidence under its normal business practices before learning of an injury or potential claim.

Steuhl v. Home Therapy Equipment, Inc. · filed 2005-11-10

Thus, “evaluating the reasonableness of the nonpreserving party’s conduct” (Kirkland v New York City Hous. Auth., supra at 175), Supreme Court properly declined to punish Home Therapy for disposing of the remaining bed components before knowing that they were involved in any injury or potentially the subject of future litigation (see Jackson v Gas Co., supra at 1106).

CPLR 3126 permits a court to deny sanctions for spoliation when the movant fails to show that evidence was willfully destroyed.

Almonte v. City of New York · filed 2006-12-26

The Supreme Court providently exercised its discretion in denying the plaintiff’s motions, inter alia, to strike the defendants’ answer pursuant to CPLR 3126 or to preclude them from offering evidence at trial based upon spoliation of evidence. The plaintiff failed to demonstrate that the defendants willfully destroyed evidence (see Gerber v Rosenfeld, 18 AD3d 812 [2005]).

CPLR 3126 gives courts discretion to deny sanctions sought for spoliation of evidence.

Dobson v. Gioia · filed 2007-04-12

Initially, we find no abuse of discretion in Supreme Court’s denial of plaintiffs’ CPLR 3126 motion seeking sanctions for alleged spoliation of evidence.

CPLR 3126 permits a spoliation sanction when the person to be sanctioned was responsible for losing or destroying evidence crucial to a claim or defense while on notice that it might be needed for litigation.

Haviv v. Bellovin · filed 2007-04-17

To impose a sanction for spoliation of evidence, it must be established that the individual to be sanctioned was responsible for the loss or destruction of evidence crucial to the establishment of a claim or defense, at a time when he was on notice that such evidence might be needed for future litigation (see Kirschen v Marino, 16 AD3d 555 [2005]; Iannucci v Rose, 8 AD3d 437 [2004]; Baglio v St John’s Queens Hosp., 303 AD2d 341 [2003]).

CPLR 3126 permits a court to strike an answer for destruction of key evidence when the movant proves the destruction deprived them of the ability to prove their claim.

Siegel v. Monsey New Square Trails Corp. · filed 2007-05-22

The Supreme Court properly denied that branch of the plaintiffs’ motion which was pursuant to CPLR 3126 to strike the answer of the defendants and third-party plaintiffs because they failed to prove that the defendants and third-party plaintiffs destroyed key evidence that deprived them of their ability to prove their claim (see Soto v New York City Tr. Auth., 25 AD3d 546 [2006]).

Failure to photograph an alleged hazardous condition before cleaning it up does not, by itself, warrant sanctions under CPLR 3126.

Chetcuti v. Wal-Mart Stores, Inc. · filed 2007-07-10

The plaintiff’s contention that the defendants engaged in sanctionable conduct by failing to take photographs of the alleged hazardous condition before cleaning it up is without merit (see Barahona v Trustees of Columbia Univ. in City of N.Y., 16 AD3d 445, 446 [2005]; Favish v Tepler, 294 AD2d 396 [2002]).

CPLR 3126 permits a court to preclude a party that negligently disposed of key evidence from contesting facts the evidence could have established.

Erdely v. Access Direct Systems, Inc. · filed 2007-11-20

Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendant’s motion which was for summary judgment dismissing the common-law negligence cause of action is denied, that branch of the plaintiffs’ cross motion which was for summary judgment on the issue of liability on the common-law negligence cause of action is granted, and that branch of the plaintiffs’ cross motion which was to strike the defendant’s answer pursuant to CPLR 3126 as a sanction for its spoliation of evidence is granted to the extent of precluding the defendant from controverting the plaintiffs’ prima facie showing that the subject ladder was defective and that the defendant had actual or constructive knowledge of such defect.

Section 3126 permits dismissal of claims as a sanction when the loss of evidence severely prejudices the opposing party's defense.

Lichtenstein v. Fantastic Merchandise Corp. · filed 2007-12-18

Accordingly, the sanction of dismissal of so much of the first, second, third, fourth, and fifth causes of action in the amended complaint as allege defective design and manufacturing defects in the subject bottle or its contents, insofar as asserted against Well Done and Fantastic, is warranted.

Section 3126 permits dismissal of a complaint when a party’s intentional destruction of key evidence severely prejudices the opposing party.

Ingoglia v. Barnes & Noble College Booksellers, Inc. · filed 2008-02-19(3)

In support of its motion to dismiss the complaint pursuant to CPLR 3126 based upon spoliation of evidence, the defendant submitted the affidavit of its expert. ... Evidence showed that the defendant was severely prejudiced by the plaintiffs intentional destruction of key evidence. Accordingly, the Supreme Court abused its discretion in denying the defendant’s motion to dismiss the complaint for spoliation of evidence (see Long Is. Diagnostic Imaging v Stony Brook Diagnostic Assoc., 286 AD2d 320 [2001]; Sage Realty Corp. v Proskauer Rose, 275 AD2d 11 [2000]; DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41 [1998]).

Section 3126 permits a court to strike an answer for spoliation when a party intentionally or negligently fails to preserve crucial evidence after notice that it may be needed in future litigation.

Sloane v. Costco Wholesale Corp. · filed 2008-03-04

Furthermore, the court providently exercised its discretion in denying the plaintiffs cross motion to strike the defendant’s answer pursuant to CPLR 3126 based upon spoliation of evidence. The plaintiff failed to establish that the defendant intentionally or negligently failed to preserve crucial evidence after being placed on notice that such evidence might be needed for future litigation (see Denoyelles v Gallagher, 40 AD3d 1027 [2007]; Lovell v United Skates of Am., Inc., 28 AD3d 721 [2006]; lannucci v Rose, 8 AD3d 437, 438 [2004]; Andretta v Lenahan, 303 AD2d 527, 528 [2003]).

CPLR 3126 permits a court to strike a complaint when a plaintiff negligently fails to preserve evidence crucial to the defense.

Schimicci v. Dermpath, Inc. · filed 2008-03-11

Contrary to the plaintiff’s contention, the Supreme Court providently exercised its discretion in granting that branch of the defendants’ cross motion which was pursuant to CPLR 3126 to strike the complaint on the ground of spoliation of evidence based on the plaintiffs negligent failure to preserve key pieces of evidence which, in light of the nature of the claims asserted, were crucial to the defense of this matter (see Lichtenstein v *627Fantastic Mdse. Corp., 46 AD3d 762 [2007]; Horace Mann Ins. Co. v E.T. Appliances, 290 AD2d 418 [2002]; Behrbom v Healthco Intl., 285 AD2d 573 [2001]; Squitieri v City of New York, 248 AD2d 201 [1998]).

Spoliation sanctions under CPLR 3126 are inappropriate when a party did not discard crucial evidence to frustrate discovery and cannot be presumed responsible for its disappearance.

Cordero v. Mirecle Cab Corp. · filed 2008-05-13

Where a party did not discard crucial evidence in an effort to frustrate discovery, and cannot be presumed to be responsible for the disappearance of such evidence, spoliation sanctions are inappropriate (see O’Reilly v Yavorskiy, 300 AD2d 456, 457 [2002]; McLaughlin v Brouillet, 289 AD2d 461 [2001]).

Section 3126 permits dismissal for spoliation when the moving party proves that crucial evidence was negligently or intentionally destroyed.

Mangiaracina v. City of New York · filed 2008-10-07

The Supreme Court providently exercised its discretion in denying that branch of the motion of the defendant General Motors, Inc. (hereinafter GM), which was to dismiss the complaint insofar as asserted against it based on the spoliation of evidence. GM failed to prove that the plaintiff negligently or intentionally destroyed crucial evidence (see Cordero v Mirecle Cab Corp., 51 AD3d 707 [2008]; Iamiceli v General Motors Corp., 51 AD3d 635 [2008]).

Section 3126 permits an adverse inference charge for lost evidence when the loss does not prevent the opposing party from proving its claim.

Koehler v. Club · filed 2008-10-10

Rather, we conclude that an adverse inference charge against defendants is a more appropriate sanction.

Section 3126 permits an adverse inference instruction as a discretionary sanction for negligent spoliation of evidence.

Marotta v. Hoy · filed 2008-10-30

Turning to Supreme Court’s determination that plaintiff is entitled to an adverse inference instruction as a sanction for negligent spoliation of evidence (see PJI 1:77), we discern no abuse of discretion (see Allain v Les Indus. Portes Mackie, Inc., 16 AD3d 863, 864 [2005]; Gilbert v Albany Med. Ctr., 13 AD3d 753, 754 [2004]; Lawrence Ins. Group v KPMG Peat Marwick, 5 AD3d 918, 920 [2004]; Bigelow v Dick’s Sporting Goods, 1 AD3d 777 [2003]; see also CPLR 3126).

CPLR 3126 permits an answer to be struck for spoliation when a party intentionally or negligently fails to preserve crucial evidence after notice that it may be needed for litigation.

Leevson v. Bay Condos, LLC · filed 2009-11-24

The Supreme Court properly denied the plaintiffs’ motion to strike the answer of the defendant Walgreen Eastern Co., Inc. (hereinafter Walgreen), based on its spoliation of evidence and for summary judgment on the issue of liability insofar as asserted against Walgreen (see CPLR 3126; Mylonas v Town of Brookhaven, 305 AD2d 561, 562-563 [2003]). The plaintiffs failed to establish, as a matter of law, that Walgreen “intentionally or negligently failed to preserve crucial evidence after being placed on notice that such evidence might be needed for future litigation” (Sloane v Costco Wholesale Corp., 49 AD3d 522, 523 [2008]; see Dessources v Good Samaritan Hosp., 65 AD3d 1008, 1010 [2009]; Lovell v United Skates of Am., Inc., 28 AD3d 721 [2006]; Goll v American Broadcasting Cos., Inc., 10 AD3d 672, 673 [2004]; Baglio v St. John’s Queens Hosp., 303 AD2d 341, 342 [2003]).

Section 3126 permits a monetary sanction for grossly negligent failure to preserve potentially relevant documents and coordinate their retrieval and production.

County of Erie v. Abbott Laboratories, Inc. · filed 2010-07-19

Defendants have moved for an order pursuant to CPLR 3126 to strike the complaint and dismiss all causes of action against defendants with prejudice based on alleged discovery abuses and violations of discovery orders. ... In addition, this court finds that plaintiffs failure to interpose any “litigation hold” on the routine destruction of documents potentially relevant to the lawsuit, and plaintiffs failure to establish a coordinated plan for the retrieval and production of such documents, is so grossly negligent as to warrant a monetary sanction as well.

CPLR 3126 does not warrant striking an answer for spoliation when other evidence leaves the plaintiff able to establish the case.

Hoffman v. United Methodist Church · filed 2010-08-10

We therefore reject the plaintiffs’ argument that the defendant’s spoliation of this evidence warrants striking of the answer.

Section 3126 allows courts to strike pleadings or preclude evidence for spoliation, with the sanction depending on the party’s conduct and the prejudice caused.

Scordo v. Costco Wholesale Corp. · filed 2010-10-12

The Supreme Court providently exercised its discretion in denying that branch of the defendant’s motion which was to strike the plaintiffs’ respective complaints due to spoliation of evidence. ... Here, the defendant failed to establish that the plaintiffs acted willfully or contumaciously in disposing of the car.

Section 3126 permits an adverse inference charge for spoliation of evidence when the prejudice does not warrant striking a pleading.

Shayovich v. 800 Ocean Parkway Apartment Corp. · filed 2010-10-19

Ordered that the order is modified, on the facts and in the exercise of discretion, by adding thereto a provision granting that branch of the plaintiffs’ motion which was pursuant to CPLR 3126 to the further extent of directing that an adverse inference charge be given at trial; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiffs payable by the defendants appearing separately and filing separate briefs.

Section 3126 permits an adverse inference charge for spoliation that significantly prejudices an opposing party, even when striking a pleading is unwarranted.

Rodman v. Ardsley Radiology, P.C. · filed 2011-01-11

Ordered that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, the plaintiffs’ cross motion pursuant to CPLR 3126 to strike the answers of the defendants Ardsley Radiology, EC., and Joseph McCarthy, M.D., on the ground of spoliation of evidence is granted to the extent of directing that an adverse inference charge pertaining to those defendants be given at trial, and the cross motion is otherwise denied.

CPLR 3126 does not permit striking a party’s answer for evidence lost by the District Attorney’s Office when that office is not the party’s agent.

Narvaez v. City of New York · filed 2011-04-14

The court properly denied plaintiffs cross motion pursuant to CPLR 3126 to strike NYCHA’s and the City’s answers due to spoliation. Those defendants cannot be held liable for the District Attorney’s loss of the file concerning the NYPD’s investigation of plaintiff.

Section 3126 leaves the determination of spoliation sanctions to the trial court’s broad discretion.

Gille v. Long Beach City School District · filed 2011-05-17

However, because the determination of spoliation sanctions is within the broad discretion of the trial court (see lamiceli v General Motors Corp., 51 AD3d 635 [2008]; Barnes v Paulin, 52 AD3d 754 [2008]; Dennis v City of New York, 18 AD3d 599 [2005]), the matter must be remitted to the Supreme Court, Nassau County, for its determination of the cross motion on the merits (see American Fedn. of School Adm’rs, AFL-CIO v Council of Adm’rs & Supervisors, 266 AD2d 417, 418 [1999]; Polera Bldg. Corp. v New York School Constr. Auth., 262 AD2d 295 [1999]).

CPLR 3126 permits a court to sanction the loss of evidence by precluding related testimony when the circumstances warrant it.

Ortiz v. Bajwa Development Corp. · filed 2011-11-22

Accordingly, under the circumstances, the court should have granted the plaintiffs motion pursuant to CPLR 3126, but only to the extent of precluding the defendant from offering any testimony at trial from its employees whose names and addresses were lost.

Section 3126 permits a court to preclude testimony about destroyed evidence when a party failed to preserve it and its loss severely prejudices the opposing party.

S.B. v. U.B. · filed 2012-10-31

To allow the mother to utilize the diary which was heavily redacted by a witness in pari delicto with her would be severely prejudicial to the father. As such, the plaintiff mother and the witness S. are precluded from testifying as to the existence, or contents, of the diary at any hearing.