N.Y. C.P.L.R. § 3126

Section 3126 permits courts to tailor discovery sanctions to the prejudice caused, and striking a pleading is inappropriate when alleged spoliation did not impair the opposing party’s case or defense.

Melcher v. Apollo Medical Fund Management L.L.C. · filed 2013-01-29

CPLR 3126 provides a court with a broad range of options in addressing a party’s discovery abuses. ... Applying these principles, we conclude that the striking of defendants’ pleadings, given the postverdict posture of the case, would not be an appropriate sanction. Even if defendants fabricated or spoliated the evidence, in view of the jury’s verdict, any such misconduct did not prejudice Melcher in establishing or defending his case.

Section 3126 permits preclusion for lost evidence when the party seeking the sanction shows that the opposing party was responsible for the loss and that the loss impaired its ability to establish a defense.

Hoffman v. United Methodist Church · filed 2012-10-10

In support of its motion pursuant to CPLR 3126 to impose the sanction of preclusion of certain evidence on the ground of the plaintiffs’ alleged spoliation of MRI films dated November 16, 2007, the defendant failed to demonstrate that the plaintiffs were responsible for the loss of the original MRI films, and failed to demonstrate that the plaintiffs’ allegedly negligent loss of a copy of the MRI films deprived the defendant of its ability to establish its defense.

CPLR 3126 permits an adverse inference charge when a party’s spoliation of evidence warrants a sanction.

Rodman v. Ardsley Radiology, P.C. · filed 2013-02-27

However, in light of the plaintiffs’ admission and under the other circumstances of this case, the Supreme Court should have granted the defendants’ motion pursuant to CPLR 3126 for the imposition of sanctions to the extent of directing that an adverse inference charge pertaining to the 2003 ultrasound films be given at trial against ... the plaintiffs (see Rodman v Ardsley Radiology, P.C., 80 AD3d 598, 598-599 [2011]; Tapia v Royal Tours Serv., Inc., 67 AD3d 894, 896 [2009]).

Section 3126 permits a negative inference charge when a party’s failure to preserve evidence impairs resolution of a disputed fact; striking the answer is inappropriate if the plaintiff can still establish a prima facie case.

Murillo v. Porteus · filed 2013-07-31

Under the circumstances of this case, the appropriate remedy is for the court to give a negative inference charge at trial against Geoffrey Porteus on the issue of who owned or controlled the table saw used by the plaintiff on the day of the accident (see Gogos v Modell's Sporting Goods, Inc., 87 AD3d 248, 250 [2011]; Ifraimov v Phoenix Indus. Gas, 4 AD3d 332, 334 [2004]).

CPLR 3126 permits a spoliation sanction that strikes affirmative defenses and bars testimony when striking the entire answer is unwarranted.

Samaroo v. Bogopa Service Corp. · filed 2013-05-01

Under the circumstances of this case, however, a lesser sanction was warranted and, contrary to the defendants’ contention on their appeal, the Supreme Court providently exercised its discretion in granting that branch of the plaintiffs motion which was pursuant to CPLR 3126 to impose a sanction upon them for spoliation of evidence to the extent of striking their ninth and tenth affirmative defenses and precluding them from offering testimony at trial to contradict the plaintiffs claim of adequate notice (see Aloyts v 601 Tenant’s Corp., 84 AD3d 1287, 1288 [2011]; Fossing v Townsend Manor Inn, Inc., 72 AD3d at 886; Weber v Harley-Davidson Motor Co., Inc., 58 AD3d at 722-723; Mylonas v Town of Brookhaven, 305 AD2d 561, 563 [2003]).

Section 3126 permits a spoliation sanction, but dismissal is too harsh when the destroyed evidence is not crucial and the party’s conduct does not show a higher degree of culpability.

New York City Housing Authority v. Pro Quest Security, Inc. · filed 2013-07-23

Although NYCHA should be sanctioned for the destruction of portions of the surveillance video, the dismissal of the complaint was too harsh a remedy.

CPLR 3126 does not support a spoliation sanction without evidence that the party was responsible for the loss or destruction of the evidence.

Burbige v. Siben & Ferber · filed 2014-03-05

Contrary to the plaintiff’s contention, the Supreme Court properly denied his cross motion pursuant to CPLR 3126 to impose a sanction upon the defendants for the spoliation of evidence, as there is no evidence that the defendants were responsible for the loss or destruction of the subject ladder (see Gotto v Eusebe-Carter, 69 AD3d 566, 567 [2010]).

Section 3126(3) permits sanctions for spoliation, including dismissal, when a party intentionally or negligently disposes of critical evidence before an opposing party can inspect it.

Markel Insurance v. Fuel · filed 2014-04-03(3)

Sanctions for spoliation — including the dismissal of a pleading — may be imposed when a litigant intentionally or negligently disposes of critical items of evidence before an opposing party has an opportunity to inspect them (see CPLR 3126 [3]; Cummings v Central Tractor Farm & Country, 281 AD2d 792, 793 [2001], lv dismissed 96 NY2d 896 [2001]; Hartford Fire Ins. Co. v Regenerative Bldg. Constr., 271 AD2d 862, 863 [2000]). There is no evidence in the record here that defendants were deprived of such an opportunity.

CPLR 3126 permits striking an answer for spoliation when the moving party conclusively establishes that evidence was willfully destroyed or discarded to frustrate its interests.

Lipco Electrical Corp. v. ASG Consulting Corp. · filed 2014-05-07

The Supreme Court also properly denied those branches of the appellants’ motion which were pursuant to CPLR 3126 to strike the answer of the defendants in action No. 1 and for an award of sanctions based on the spoliation of evidence, since the appellants failed to conclusively establish that certain evidence was “willfully destroyed or discarded in order to frustrate [their] interests” (Cohen v Jordan Servs., Inc., 49 AD3d 680, 681 [2008]; see Falcone v Karagiannis, 93 AD3d 632, 633-634 [2012]).

CPLR 3126 permits a court to strike a party’s answer and award summary judgment on liability when the party’s disposal of evidence unduly prejudices its opponents.

Biniachvili v. Yeshivat Shaare Torah, Inc. · filed 2014-08-20

Here, the Supreme Court providently exercised its discretion in striking the defendant’s answers and thereupon awarding the plaintiffs summary judgment on the issue of liability pursuant to CPLR 3126.

CPLR 3126 permits striking an answer for spoliation when a party’s destruction of critical evidence prejudices the opposing party’s ability to prove its claim.

Lentini v. Weschler · filed 2014-09-10

Here, the Supreme Court providently exercised its discretion in striking the defendant’s answer and awarding the plaintiff summary judgment on the issue of liability since the defendant paved over the walkway after receiving notice that the plaintiff intended to inspect it and after his own expert was afforded an opportunity to inspect the walkway prior to it being covered in cement (see Thornhill v A.B. Volvo, 304 AD2d 651, 652 [2003]).

Section 3126 permits sanctions when a party negligently loses or intentionally destroys key evidence; the sanction depends on the circumstances and resulting prejudice.

Neve v. City of New York · filed 2014-05-28

Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence (see CPLR 3126; Samaroo v Bogopa Serv. Corp., 106 AD3d 713, 713-714 [2013]; Rodman v Ardsley Radiology, P.C., 103 AD3d 871, 872 [2013]; Gotto v Eusebe-Carter, 69 AD3d 566, 567 [2010]; Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717, 718 [2009]).

CPLR 3126 does not support preclusion for spoliation when the moving party fails to show that the opposing party lost or destroyed the evidence.

Eremina v. Scparta · filed 2014-08-20

Here, the defendants failed to demonstrate that the plaintiffs lost or destroyed the MRI films, or even that the MRI films are lost or destroyed. Thus, the Supreme Court improvidently exercised its discretion in granting the Scpartas’ motion, and that branch of Funahashi’s cross motion, which were pursuant to CPLR 3126 to preclude the plaintiffs from introducing the MRI films and related evidence at trial based on spoliation of evidence (see Cordero v Mirecle Cab Corp., 51 AD3d at 709).

Section 3126 allows a court to deny spoliation sanctions when the moving party fails to show that critical evidence was intentionally or negligently disposed of or that its loss fatally compromised a claim.

Mangilit-Pradlik v. Valvoline Instant Oil Change GE 6604-White Plains · filed 2014-08-27

Here, the plaintiffs failed to establish that the defendants intentionally or negligently disposed of critical evidence, or that the loss of the evidence fatally compromised their ability to prove their claims (see Scivoli v Levit, 79 AD3d 1011, 1013 [2010]).

CPLR 3126 permits a court to deny a request to dismiss a complaint for spoliation of evidence in its discretion.

Samet v. Binson · filed 2014-11-12

The Supreme Court also providently exercised its discretion in denying the alternative branch of the defendant’s motion which was pursuant to CPLR 3126 to dismiss the amended complaint based on spoliation of evidence (cf. Gagliardi v Preferred Mut. Ins. Co., 102 AD3d 741, 742 [2013]).

A spoliation claim may be treated as a request for sanctions under CPLR 3126.

Lawrence v. North Country Animal Control Center, Inc. · filed 2015-03-05

Turning to the cross appeal, we find no error in Supreme Court's determination to treat the spoliation claim as a request for sanctions pursuant to CPLR 3126, inasmuch as the Court of Appeals has specifically "decline[d] to recognize spoliation of evidence as an independent tort claim" (Ortega v City of New York, 9 NY3d 69, 83 [2007]).

Section 3126 leaves the decision whether to impose spoliation sanctions to the trial court’s discretion.

Johnson v. NBO Realty, Inc. · filed 2015-04-29

Under the circumstances of this case, the denial of the plaintiffs’ motion pursuant to CPLR 3126 to impose sanctions upon the defendant for the alleged spoliation of evidence constituted a provident exercise of discretion.

CPLR 3126 permits a negative inference charge for lost evidence when striking a pleading would be too severe.

Morales v. City of New York · filed 2015-07-15

Ordered that the order dated February 28, 2013, is modified, on the law and in the exercise of discretion, by deleting the provision thereof, upon renewal and reargument, granting the plaintiffs motion pursuant to CPLR 3126 to strike the answer of the defendants City of New York and New York City Police Department, made on the ground of spoliation of physical evidence, and substituting therefor a provision, upon renewal and reargument, granting that motion only to the extent of directing that a negative inference charge be given at the trial of this action with respect to the subject physical evidence and otherwise denying that motion; as so modified, the order dated February 28, 2013, is affirmed insofar as appealed from, without costs or disbursements.

CPLR 3126 spoliation sanctions require proof that a party intentionally or negligently disposed of crucial evidence before the opposing party could inspect it.

BILL'S FEED SERVICE, LLC v. ADAMS, WILLIAM · filed 2015-10-09

“A party seeking a sanction pursuant to CPLR 3126 such as preclusion or dismissal is required to demonstrate that a litigant, intentionally or negligently, dispose[d] of crucial items of evidence . . . before the adversary ha[d] an opportunity to inspect them . . . , thus depriving the party seeking a sanction of the means of proving his claim or defense” (Koehler v Midtown Athletic Club, LLP, 55 AD3d 1444, 1445 [internal quotation marks omitted]). ... Here, we conclude that plaintiff failed to establish that defendant intentionally or negligently disposed of the evidence at issue.

Under CPLR 3126, failure to institute a litigation hold is one factor in assessing culpability for lost evidence; it is not gross negligence per se.

Pegasus Aviation I, Inc. v. Varig Logistica S.A. · filed 2015-12-15

However, in this instance, ... the failure to institute a litigation hold did not amount to gross negligence per se, as the trial court held. Rather, a party's failure to institute a litigation hold is but one factor that a trial court can consider in making a determination as to the alleged spoliator's culpable state of mind.

Section 3126(3) permits a court to strike a pleading for spoliation, but negligent destruction without sufficient prejudice may warrant a less severe sanction, such as an adverse inference charge.

MAHIQUES, FRANK J. v. COUNTY OF NIAGARA FALLS · filed 2016-03-25(3)

Although a court may, as one of the possible sanctions for spoliation of evidence, enter “an order striking out pleadings or parts thereof” (CPLR 3126 [3]), “[g]enerally, striking a pleading is reserved for instances of willful or contumacious conduct” (Dean v Usine Campagna, 44 AD3d 603, 605). ... Here, we conclude that plaintiffs established that some sanction is warranted because IGT negligently failed to preserve the machine, but plaintiffs failed to show that the destruction of the machine was intentional or contumacious, to warrant the sanctions imposed by the court.

CPLR 3126 does not support a spoliation sanction for failing to attend an examination that no order required.

Arias v. MSC Express Inc. · filed 2016-06-23

The motion court providently exercised its discretion in denying the motion, since plaintiff did not violate any order (see CPLR 3126), and did not intentionally or negligently dispose of crucial items of evidence (Baldwin v Gerard Ave., LLC, 58 AD3d 484, 485 [1st Dept 2009]).

Section 3126 spoliation sanctions require sufficient control over the evidence a party allegedly failed to preserve.

Platinum Equity Advisors, LLC v. SDI, Inc. · filed 2016-06-07

Based on the facts as presented by Plaintiffs, the Court concludes that the control element has not been satisfied, and as a result, Plaintiffs' motion for spoliation sanctions as to SDI is denied.

Section 3126 permits a court to strike a complaint when a party intentionally destroys evidence in anticipation of litigation.

UMS Solutions, Inc. v. Biosound Esaote, Inc. · filed 2016-12-14

Accordingly, the Supreme Court providently exercised its discretion in granting the defendants’ motion pursuant to CPLR 3126 to strike the complaint.

Section 3126 does not warrant preclusion for lost evidence when the party never possessed it and the movant fails to show that its loss severely prejudiced the defense.

Gaoming You v. Rahmouni · filed 2017-02-01

Here, the plaintiffs, who were never in possession of the MRI films, did not willfully discard the MRI films. ... In any event, the defendant, who obtained copies of the MRI reports prepared by Doshi, failed to show that the MRI films were central to the case or that their destruction severely prejudiced his ability to defend the action ... Accordingly, the defendant’s motion pursuant to CPLR 3126 to preclude the plaintiffs from introducing at trial any evidence or testimony derived from the MRI films should have been denied.

Section 3126 permits an adverse inference charge for a negligently lost recording when the opposing party can still prove its case, rather than striking the answer.

Peters v. Hernandez · filed 2016-09-14

Ordered that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting that branch of the plaintiff’s motion which was pursuant to CPLR 3126 to strike the answer of the defendants MDC Tavern Corp., doing business as Carousel, Mark E. Carney, Dennis Charette, and Gregory Robert Walsh on the ground of spoliation of evidence, and substituting therefor a provision granting that branch of the plaintiff’s motion to the extent of directing that an adverse inference charge be given against those defendants at the trial of this action with respect to a video recording of the underlying incident and otherwise denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

CPLR 3126 permits a court to limit a spoliation sanction when the party seeking it had an opportunity to inspect the evidence and identifies nothing a further inspection would have revealed.

Fajardo v. Mainco Elevator & Electrical Corp. · filed 2016-10-12

Here, the Supreme Court did not improvidently exercise its discretion in granting Mainco’s cross motion only to the extent of directing that the Bronx Center produce its expert for a deposition, since Mainco had ample opportunity to inspect and photograph the subject elevator on the day of the accident, never made a request in the several months after the accident to conduct a further inspection, and has not identified any evidence it sought to obtain from such further inspection (see Doviak v Finkelstein & Partners, LLP, 137 AD3d 843, 846 [2016]).

CPLR 3126 permits sanctions when a party negligently loses or intentionally destroys key evidence.

Saeed v. City of New York · filed 2017-12-13

“ ‘Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126’ ” (Samaroo v Bogopa Serv. Corp., 106 AD3d 713, 713-714 [2013], quoting Holland v W.M. Realty Mgt, Inc., 64 AD3d 627, 629 [2009]).

CPLR 3126 gives courts broad discretion to choose an appropriate sanction for spoliation of evidence.

Lilavois v. JP Morgan Chase & Co. · filed 2017-06-07

The Supreme Court is empowered with broad discretion in determining the appropriate sanction for spoliation of evidence (see CPLR 3126; Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d at 551; Giuliano v 666 Old Country Rd., LLC, 100 AD3d 960, 962 [2012]).

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

Burke v. Queen of Heaven Roman Catholic Elementary School · filed 2017-06-09

We thus agree with plaintiff that the imposition of a sanction against defendant for spoliation of evidence was warranted here (see CPLR 3126). ... Thus, we conclude that an appropriate sanction is that an adverse inference charge be given at trial with respect to any now unavailable evidence of the condition of the stairs (see Sarach, 140 AD3d at 1722; Mahiques, 137 AD3d at 1652-1653; Jennings v Orange Regional Med. Ctr., 102 AD3d 654, 656 [2013]), and we modify the order accordingly.

Section 3126 permits an adverse inference charge for spoliation of evidence when that sanction fits the circumstances.

Smith v. Cunningham · filed 2017-10-04

Under the circumstances of this case, the appropriate sanction was to give an adverse inference charge at trial against the defendant with respect to the spoliation of physical evidence (see Morales v City of New York, 130 AD3d 792 [2015]; Samaroo v Bogopa Serv. Corp., 106 AD3d 713, 714 [2013]).

Section 3126 permits a court to decline to strike an answer for spoliation when the movant fails to show that relevant evidence was destroyed with a culpable state of mind.

Goodwin v. Guardian Life Insurance Co. of America · filed 2017-12-20

Additionally, the Supreme Court providently exercised its discretion in declining to strike the defendants’ separate answers, as the plaintiff failed to demonstrate that any evidence was “destroyed with a culpable state of mind,” and that the “destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547 [2015] [internal quotation marks omitted]; see CPLR 3126; cf. UMS Solutions, Inc. v Biosound Esaote, Inc., 145 AD3d 831, 832 [2016]).

CPLR 3126 permits a tailored adverse inference and exclusion of contrary evidence when a party grossly negligently destroys relevant electronic evidence.

Douglas Elliman LLC v. Tal · filed 2017-12-28

Accordingly, the court properly exercised its discretion in presuming the relevance of the email exchange and imposing spoliation sanctions (id.). Further, the court engaged in “an appropriate balancing under the circumstances” by ordering a tailored adverse inference charge limited to the alleged contents of the email exchange regarding defendant’s Tal’s work at Itzhaki Properties, and precluding plaintiff from presenting contrary evidence (id. at 47).

CPLR 3126 permits sanctions when a party negligently loses or intentionally destroys key evidence.

Tanner v. Bethpage Union Free Sch. Dist. · filed 2018-05-30

"Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126" ( Holland v W.M. Realty Mgt., Inc., 64 AD3d 627, 629).

CPLR 3126 does not support striking an answer or imposing sanctions for spoliation when the claim that relevant evidence was destroyed rests on speculation.

Cruzate v. Town of Islip · filed 2018-06-20

Furthermore, we agree with the Supreme Court's determination to deny the plaintiffs' cross motion pursuant to CPLR 3126 to strike the Town's answer or, in the alternative, to impose sanctions for spoliation of evidence due to the destruction of log books. The plaintiffs' claim that relevant evidence was destroyed is based upon speculation.

A party seeking CPLR 3126 spoliation sanctions must show that its opponent intentionally or negligently disposed of critical evidence and fatally compromised its ability to prove the case.

Daconta v. Otis El. Co. · filed 2018-10-10

We agree with the Supreme Court's denial of that branch of the plaintiffs' cross motion which was pursuant to CPLR 3126 to impose sanctions on the defendant for spoliation of evidence. The plaintiffs did not demonstrate that the defendant "intentionally or negligently disposed of critical evidence, and fatally compromised [their] ability to prove" their case ( Cioffi v S.M. Foods, Inc ., 142 AD3d 520, 525 [citations and internal quotation marks omitted]; see Pegasus Aviation I, Inc. v Varig Logistica S.A. , 26 NY3d 543, 547; Pennachio v Costco Wholesale Corp ., 119 AD3d 662, 663-664; Gotto v Eusebe-Carter , 69 AD3d 566, 567).

Section 3126 permits an adverse inference charge for negligent destruction of relevant evidence when striking a pleading would be too severe.

Squillacioti v. Independent Group Home Living Program, Inc. · filed 2018-12-05

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the plaintiffs' motion pursuant to CPLR 3126 to impose sanctions against the defendants for spoliation of evidence is granted to the extent of directing that an adverse inference charge be given at trial against the defendants with respect to the personnel file of Rosa Escajadillo, and is otherwise denied.

CPLR 3126 permits sanctions for spoliation of evidence, but the party seeking sanctions must establish a duty to preserve the evidence, a culpable state of mind, and relevance to a claim or defense.

Cannella v. Spector · filed 2018-12-19

Contrary to the plaintiff's contentions, the Supreme Court did not improvidently exercise its discretion in denying his motion, inter alia, to impose sanctions on the basis of the defendants' alleged spoliation of evidence. "Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126" ( Holland v W.M. Realty Mgt., Inc. , 64 AD3d 627, 629).

Section 3126 permits a spoliation sanction when a party fails to preserve evidence after receiving notice that it might be needed for future litigation.

Page v. Niagara Falls Mem. Med. Ctr. · filed 2018-12-21

We agree with defendant that plaintiffs "failed to establish that . . . defendant intentionally or negligently failed to preserve crucial evidence after being placed on notice that the evidence might be needed for future litigation" ( Aponte v Clove Lakes Health Care & Rehabilitation Ctr., Inc. , 153 AD3d 593, 594 [2d Dept 2017]).

Section 3126 permits sanctions when a party negligently loses or intentionally destroys key evidence.

SM v. Plainedge Union Free Sch. Dist. · filed 2018-06-13

The Supreme Court also properly granted the plaintiffs' cross motion to impose sanctions against the defendant for spoliation of evidence. "Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126" ( Holland v W.M. Realty Mgt., Inc ., 64 AD3d 627, 629; see Samaroo v Bogopa Serv. Corp ., 106 AD3d 713, 713-714).

CPLR 3126 permits preclusion of evidence concerning disposed items that were unavailable for inspection when dismissal is unwarranted as a spoliation sanction.

Heins v. Public Stor. · filed 2018-08-29

We conclude that the Supreme Court providently exercised its discretion in denying that branch of the defendants' motion which was pursuant to CPLR 3126 to dismiss the complaint. However, the court improvidently exercised its discretion in determining the sanction to impose. ... Under the circumstances of this case, the appropriate sanction is to preclude evidence of the items disposed by the plaintiff that were not available for inspection by the defendants ( see Pegasus Aviation I, Inc. v Varig Logistica S.A. , 26 NY3d at 551).

Section 3126 spoliation sanctions require proof that the party to be sanctioned discarded the evidence and had a duty to preserve it when it was destroyed.

Franco Belli Plumbing & Heating & Sons, Inc. v. Dimino · filed 2018-09-19

Furthermore, the Supreme Court improvidently exercised its discretion in granting the plaintiff's cross motion pursuant to CPLR 3126 to impose sanctions on the defendants for spoliation of evidence. ... Although that evidence was relevant to the plaintiff's claims, the plaintiff failed to establish that it was the defendants who discarded that evidence and that the defendants had an obligation to preserve the evidence at the time the evidence was destroyed ( see Golan v North Shore-Long Is. Jewish Health Sys., Inc., 147 AD3d at 1033; Gaoming You v Rahmouni, 147 AD3d 729, 730).

Section 3126 permits a limited spoliation sanction, such as an adverse inference charge, when the loss of evidence does not fatally compromise the other parties' claims or defenses.

McDonnell v. Sandaro Realty, Inc. · filed 2018-10-24

Accordingly, although some sanction is appropriate, striking Howell's third-party complaint and precluding it from introducing any evidence at trial as to the condition of the scaffold or plank was an improvident exercise of the court's discretion.

Section 3126 permits striking a defendant's answer when it fails to preserve demanded evidence needed to prove a claim and cannot explain its loss despite a court order.

Davis v. Pathmark · filed 2018-06-21

Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered September 20, 2017, which granted plaintiff's motion to strike the answer of defendants Pathmark and Pathmark Store, Inc. pursuant to CPLR 3126, and thereupon granted plaintiff summary judgment on the issue of liability, unanimously affirmed, without costs. ... Despite a court order and a discovery conference stipulation, defendants failed to explain why the remainder of the video became unavailable.

CPLR 3126 permits a spoliation sanction when the moving party establishes that the opposing party negligently lost or intentionally destroyed key evidence.

Helm v. Yang · filed 2019-02-01

"Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126" ( Rodman v Ardsley Radiology, P.C. , 80 AD3d 598, 598 [2d Dept 2011]). Here, defendant did not meet his burden of establishing that plaintiffs negligently lost or intentionally destroyed evidence.

CPLR 3126 permits a court to defer dismissal for spoliation of electronic evidence while it investigates disputed facts about the deletion and possible recovery of emails.

Brandsway Hospitality, LLC v. Delshah Capital LLC · filed 2019-06-06

It was a sound exercise of the court's discretion to deny, at this juncture, the motion to dismiss for spoliation of electronic evidence (CPLR 3126). Instead, the court referred the issues to an expert in information technology to examine various email accounts, servers and domains to determine who deleted emails, when they were deleted, and whether they could be retrieved ( see Shapiro v Boulevard Hous. Corp. , 70 AD3d 474, 476 [1st Dept 2010]). Although there appears to be no dispute that emails were deleted, the parties present sharply conflicting accounts of when and by whom such deletions occurred.

Section 3126 permits sanctions for spoliation of evidence, but the moving party must show that the opponent intentionally or negligently disposed of critical evidence and fatally compromised the moving party's ability to prove the claim.

Williams v. City of New York · filed 2019-07-24

Here, we agree with the Supreme Court's denial of that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the defendants' answer or, in the alternative, to [*2]impose other sanctions. The plaintiff failed to sustain his burden of establishing that the defendants "intentionally or negligently disposed of critical evidence, and fatally compromised [his] ability to prove" his claim ( Cioffi v S.M. Foods, Inc. , 142 AD3d 520, 525 [citations and internal quotation marks omitted]; see Pegasus Aviation I, Inc. v Varig Logistica S.A. , 26 NY3d at 547; Daconta v Otis El. Co. , 165 AD3d 753, 754).

CPLR 3126 permits striking a complaint for spoliation when the loss of evidence significantly compromises the opposing party's defense.

Delmur, Inc. v. School Constr. Auth. · filed 2019-07-24

Furthermore, the defendants demonstrated that their ability to prove their defense had been significantly, if not fatally, compromised by the loss of the truck. ... Accordingly, the Supreme Court should have granted the defendants' motion pursuant to CPLR 3126 to strike the complaint.

CPLR 3126 sanctions for spoliation are unwarranted when the party had no notice to preserve the missing evidence and its absence did not prevent the movant from proving the case.

Sarris v. Fairway Group Plainview, LLC · filed 2019-02-06

Accordingly, the Supreme Court should have denied that branch of the plaintiff's motion which was pursuant to CPLR 3126 to impose sanctions against Fairway for spoliation of evidence.

Section 3126 does not warrant spoliation sanctions when a defendant discards evidence in good faith under normal business practices before receiving notice of litigation or a specific claim.

Sanders v. 210 N. 12th St., LLC · filed 2019-04-10

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 ( see Tanner v Bethpage Union Free Sch. Dist. , 161 AD3d at 1211; Aponte v Clove Lakes Health Care & Rehabilitation Ctr., Inc. , 153 AD3d at 594; Biniachvili v Yeshivat Shaare Torah, Inc. , 120 AD3d 605, 606; Lovell v United Skates of America, Inc. , 28 AD3d 721). ... Accordingly, those branches of the plaintiff's motion which were pursuant to CPLR 3126 to impose sanctions on the defendant should have been denied.

Section 3126(3) permits dismissal for spoliation, but the sanction depends on the prejudice caused and whether dismissal is necessary for fairness.

LaBuda v. LaBuda · filed 2019-07-03(3)

A trial court has discretion to impose sanctions for spoliation, including the dismissal of a pleading, "when a litigant intentionally or negligently disposes of critical items of evidence before an opposing party has an opportunity to inspect them" ( Markel Ins. Co. v Bottini Fuel , 116 AD3d 1143, 1144 [2014]; see CPLR 3126 [3]; Jones v General Motors Corp. , 287 AD2d 757, 759 [2001]). ... Thus, we find that the sanction of dismissal was unwarranted at this juncture ( see Sarris v Fairway Group Plainview, LLC , 169 AD3d 734, 736-737 [2019]; see also Sanders v 210 N.12th St., LLC , 171 AD3d 966, 968-969 [2019]).

CPLR 3126 permits a court to strike a pleading for spoliation, but the movant must establish a duty to preserve the evidence, culpable destruction, and prejudice to the ability to prove the claim.

N. H. R. v. Deer Park Union Free Sch. Dist. · filed 2020-02-13

Here, the Supreme Court providently exercised its discretion in denying the plaintiff's cross motion pursuant to CPLR 3126 to strike the School District's answer as a sanction for spoliation of evidence. The plaintiff failed to sustain her burden of establishing that the School District had an obligation to preserve the surveillance video footage at the time of its destruction, that the surveillance video footage was destroyed with a culpable state of mind, or that the plaintiff was deprived of her ability to prove her claim ( see Pegasus Aviation I, Inc. v Varig Logistica S.A. , 26 NY3d at 547; Williams v City of New York , 174 AD3d 834, 834-835; Daconta v Otis El. Co. , 165 AD3d 753, 754).

Section 3126 permits sanctions for spoliation of evidence, but sanctions may be denied when the party responsible shows that the allegedly destroyed evidence would not support the requesting party’s claims.

Parauda v. Encompass Ins. Co. of Am. · filed 2020-11-18

"Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126" ( Delmur, Inc. v School Constr. Auth. , 174 AD3d 784, 786 [internal quotation marks omitted]). ... However, the defendant rebutted the inference of relevance by establishing that the evidence which allegedly was destroyed due to the lack of a litigation hold "would not support the [plaintiffs'] claims" ( id. at 45 [internal quotation marks omitted]). Accordingly, we agree with the Supreme Court's denial of the plaintiffs' motion to impose sanctions on the defendant for spoliation of evidence.

Spoliation sanctions under CPLR 3126 require the party accused of destroying evidence to have had control over it.

Walker v. Shaevitz & Shaevitz · filed 2021-03-24

The Supreme Court also properly denied the plaintiffs' cross motion pursuant to CPLR 3126 to impose sanctions on the law firm for spoliation. ... Here, the plaintiffs' reliance on the doctrine of spoliation is misplaced as the law firm was never in possession or control of the restaurant, its lighting system, or its renovation ( see Burbige v Siben & Ferber , 115 AD3d 632, 633).

Section 3126 permits sanctions when a party negligently loses or intentionally destroys key evidence; severe sanctions depend on the conduct and resulting prejudice.

25 Bay Terrace Assoc., L.P. v. Public Serv. Mut. Ins. Co. · filed 2021-05-05

"[W]hen a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126" ( Holland v W.M. Realty Mgt., Inc. , 64 AD3d 627, 629; see CPLR 3126).

Section 3126 sanctions for spoliation may be denied when the requesting party fails to show that critical evidence was intentionally or negligently disposed of, or even lost or destroyed.

Henry v. Atlantis Rehabilitation & Residential Healthcare Facility, LLC · filed 2021-05-26

Here, the Supreme Court providently exercised its discretion in declining to impose sanctions against the defendants for spoliation of evidence, as the plaintiff failed to establish that the defendants intentionally or negligently disposed of critical evidence ( see Sanders v 210 N. 12th St., LLC , 171 AD3d 966, 968), or even that the demanded documents and other materials were lost or destroyed ( see Eremina v Scparta , 120 AD3d 616, 618).

Section 3126(3) permits a court to strike pleadings for spoliation, but dismissal generally requires willful destruction or a showing that negligent destruction deprived the opposing party of the means to prove its case.

Miller v. Miller · filed 2020-12-23(3)

The court has broad discretion in determining what, if any, sanction is warranted for spoliation of evidence, and a permissible sanction is " 'an order striking out pleadings or parts thereof' " ( id. at 1651, quoting CPLR 3126 [3]). Although such an extreme sanction is generally limited to cases where the destruction of evidence was willful or contumacious, dismissal may be warranted where the moving party establishes that the negligent destruction of evidence " 'depriv[ed] the party seeking a sanction of the means of proving his [or her] claim or defense. The gravamen of this burden is a showing of prejudice' " ( id .; see Giambrone v Niagara Mohawk Power Corp. , 175 AD3d 1808, 1809 [4th Dept 2019]; Koehler v Midtown Athletic Club, LLP , 55 AD3d 1444, 1445 [4th Dept 2008]). ... The court therefore did not abuse its discretion in refusing to dismiss the amended complaint as a spoliation sanction.

Section 3126 permits an adverse inference charge for spoliation of relevant evidence, subject to the trial court's discretion.

Bruno v. Peak Resorts, Inc. · filed 2021-01-14

Courts may "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" and, in appropriate circumstances, when "a litigant negligently disposes of crucial items of evidence before the opposing party has had an opportunity to view them" ( Hartford Fire Ins. Co. v Regenerative Bldg. Constr. , 271 AD2d 862, 863 [2000] [internal quotation marks and citations omitted]). ... In light of plaintiff's lack of candor throughout the discovery process, as detailed above, we find no abuse of discretion in the imposition of an adverse inference charge ( see Gitman v Martinez , 169 AD3d at 1287; Merrill v Elmira Hgts. Cent. School Dist. , 77 AD3d 1165, 1167 [2010]).

CPLR 3126 permits a negative inference charge when a party fails to preserve relevant evidence after being put on notice of possible litigation.

Garcia v. Emerick Gross Real Estate, L.P. · filed 2021-07-28

"'[U]nder the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126'" ... The Supreme Court therefore providently exercised its discretion in determining that the plaintiff was entitled to a negative inference charge against Emerick at trial with respect to the unavailable ladder ( see id. at 817).

Section 3126 permits sanctions for spoliation of key evidence, but striking a complaint is within the court’s discretion and was unwarranted where the defendants had an opportunity to inspect the evidence before it was altered.

Halcyon Constr. Corp. v. Strong Steel Corp. · filed 2021-11-17

"Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126" ( N.H.R. v Deer Park Union Free Sch. Dist. , 180 AD3d 823, 824 [internal quotation marks omitted]). ... Here, the Supreme Court providently exercised its discretion in denying the defendants' cross motion to strike the complaint.

Section 3126 does not permit spoliation sanctions for medical treatment that changes the condition of a plaintiff's body; failure to attend a court-ordered medical examination is treated as a discovery failure.

Gilliam v. Uni holdings · filed 2021-12-07

We now reverse and hold that the condition of one's body is not the type of evidence that is subject to a spoliation analysis. ... Instead, a failure to appear for an ME, regardless of whether the failure to appear is preceded by medical treatment for the condition at issue, should be analyzed the same as other failures to comply with court-ordered discovery.

Section 3126 leaves the availability and choice of a lesser sanction for missing documents to the trial court’s discretion.

Marchese v. Aston · filed 2021-12-14

Whether and under what circumstances plaintiff is entitled to a lesser sanction on account of the missing documents should be left to the sound discretion of the trial court (CPLR 3126; see Quinn v City Univ. of N.Y. , 43 AD3d 679, 680 [1st Dept 2007]; NY PJI 1:77, Comment 2).

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

Ardent Harmony Fund, Inc. v. Fuschetto Home Improvements, LLC · filed 2022-01-12

The Supreme Court providently exercised its discretion in denying the plaintiffs' cross motion pursuant to CPLR 3126 to impose sanctions against the defendant for spoliation of evidence ( see Henry v Atlantis Rehabilitation & Residential Healthcare Facility, LLC , 194 AD3d 1018, 1021).

Section 3126 permits an adverse inference charge for destroyed evidence when striking a pleading would be too severe.

Dagro Assoc. II, LLC v. Chevron U.S.A., Inc. · filed 2022-06-15

Accordingly, the Supreme Court improvidently exercised its discretion in, upon reargument, granting that branch of the defendants' motion which was, in effect, pursuant to CPLR 3126 to strike the third amended complaint insofar as asserted against the defendants, and should only have granted that branch of the motion to the extent of directing that an adverse inference charge be given against the plaintiff at trial with respect to the destruction of the storage tanks.

CPLR 3126 permits a court to strike pleadings for spoliation of evidence, but the party seeking that sanction must establish a duty to preserve the evidence.

Matthews v. Geothermal Energy Options, LLC · filed 2022-10-05

Here, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the defendants' pleadings as a sanction for spoliation of evidence. The plaintiff failed to establish that the defendants possessed an obligation to preserve, in anticipation of litigation, the GHVAC component parts that had been installed on the plaintiff's property ( see Jenkins v Proto Prop. Servs., LLC , 54 AD3d at 727; cf. Biniachvili v Yeshivat Shaare Torah, Inc. , 120 AD3d 605, 606-607).

Section 3126 permits sanctions when a party negligently loses or intentionally destroys key evidence, but the party seeking sanctions must establish that the evidence was relevant.

Aldo v. City of New York · filed 2022-11-16

"[W]hen a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126" ( 25 Bay Terrace Assoc., L.P. v Public Serv. Mut. Ins. Co. , 194 AD3d 668, 672 [internal quotation marks omitted]). ... Here, the plaintiff failed to establish that the defendants intentionally or negligently spoliated evidence, or that the evidence that the defendants' failed to preserve was relevant to the plaintiff's causes of action.

CPLR 3126 permits spoliation sanctions, but a party seeking them must show that the missing evidence was relevant to proving its claim.

Phelps-Vachier v. Genovese Drug Stores, Inc. · filed 2022-07-13

Here, the Supreme Court properly denied the plaintiff's motion pursuant to CPLR 3126 to impose sanctions against the defendants for spoliation of the additional videotape footage. While the plaintiff correctly contends that the defendant possessed an obligation to preserve the entire requested portion of the surveillance video, she failed to demonstrate that the absence of videotape footage depicting the three hours prior to the accident time deprived the plaintiff of her ability to prove her claim ( see Hirschberg v Winthrop-University Hosp. , 175 AD3d at 557; Sanders v 210 N. 12th St., LLC , 171 AD3d 966, 969; Watson v 518 Pa. Hous. Dev. Fund Corp. , 160 AD3d 907, 909-910).

CPLR 3126 permits sanctions for spoliation when a party negligently loses or intentionally destroys key evidence.

Milazzo v. Best Mkt. · filed 2022-07-13

Contrary to the plaintiff's contention, the Supreme Court providently exercised its [*2]discretion in denying that branch of her motion which was to impose sanctions against the Best Market defendants for spoliation of evidence. "'Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126'" ( Garcia v Emerick Gross Real Estate, L.P. , 196 AD3d 676, 679, quoting Sanders v 210 N. 12th St., LLC , 171 AD3d 966, 968 [internal quotation marks omitted]).

Section 3126 gives courts discretion to deny a request to strike pleadings for lost evidence and to leave an adverse inference request for trial.

S.W. v. Catskill Regional Med. Ctr. · filed 2022-12-14

The Supreme Court providently exercised its discretion in denying the plaintiff's cross motion pursuant to CPLR 3126 for spoliation sanctions against the defendants, with leave to renew that branch of the cross motion which was for an adverse inference instruction at trial.

CPLR 3126 permits a court to strike a pleading for spoliation, but the party seeking that sanction must show that the opposing party controlled the evidence, had a duty to preserve it, or caused its loss.

Auguste v. Edlund Co., LLC · filed 2023-02-15

Here, the court did not improvidently exercise its discretion in denying that branch of Edlund's motion which was to strike the amended complaint on the ground of spoliation of evidence, and in denying 120 Kimball's cross-motion to strike the amended complaint on the same ground. The defendants failed to show that the plaintiff had control over the can opener, that she possessed an obligation to preserve it at the time of its loss or destruction, or that she lost or destroyed it ( see Milazzo v Best Mkt. , 207 AD3d 535, 537; Dagro Assoc. II, LLC v Chevron U.S.A., Inc. , 206 AD3d 793; Halcyon Constr. Corp. v Strong Steel Corp. , 199 AD3d at 900).

CPLR 3126 does not authorize spoliation sanctions against a plaintiff for undergoing surgery before the defendant can examine the plaintiff's presurgical condition.

Fadeau v. Corona Indus. Corp. · filed 2023-06-28

It is not reasonable to require a plaintiff to delay medical treatment, and potentially prolong his or her suffering, solely to allow a defendant to examine the plaintiff's body in a presurgical state. Under these circumstances, the plaintiff has not "refuse[d] to obey an order for disclosure or wilfully fail[ed] to disclose information which . . . ought to have been disclosed" (CPLR 3126).

CPLR 3126 does not support striking an answer for lost evidence when the party was not on notice that the evidence might be needed for future litigation when it was destroyed.

M.B. v. St. Francis Preparatory Sch. · filed 2023-09-20

Here, the Supreme Court should have denied the plaintiff's cross-motion pursuant to CPLR 3126 to strike the defendant's answer. The plaintiff did not establish that the defendant was placed on notice that the evidence might be needed for future litigation at the time the surveillance footage was overwritten ( see Sanders v 210 N. 12th St., LLC , 171 AD3d at 968; Tanner v Bethpage Union Free Sch. Dist. , 161 AD3d at 1211).

CPLR 3126 requires a spoliation sanction to be proportionate to the responsible party's degree of culpability.

Payne v. Sole Di Mare, Inc. · filed 2023-05-18

A sanction pursuant to CPLR 3126 must be commensurate with the degree of culpability attributable to the culpable party, and the trial court's determination as to the appropriate sanction for such conduct "will remain undisturbed unless there has been a clear abuse of discretion" (Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc. , 22 NY3d 877, 880 [2013]; see Kutzin v Katz , 207 AD3d 911, 913 [3d Dept 2022]).

Section 3126 does not warrant spoliation sanctions when the party seeking them fails to show that the missing evidence is relevant.

Sklar v. 650 Park Ave. Corp. · filed 2023-07-20

Further, we note that plaintiffs failed to demonstrate that the video footage at issue is relevant because defendants admitted that they caused the removal and disposal of plaintiffs' possessions. Thus, defendants' spoliation of the footage did not warrant sanctions ( see CPLR 3126 [authorizing discovery sanctions]; VOOM HD Holdings LLC v EchoStar Satellite L.L.C. , 93 AD3d 33, 45 [1st Dept 2012]).

Section 3126 permits sanctions for spoliation of evidence, but the party seeking sanctions must demonstrate a culpable state of mind and the missing evidence’s relevance to the claims or defenses.

National Convention Servs., LLC v. FB Intl., Inc. · filed 2023-11-14

FB is therefore unable to demonstrate spoliation of evidence, since, at a minimum, defendant was unable to demonstrate a culpable state of mind and relevancy to the claims or defenses at issue ( VOOM HD Holdings LLC v EchoStar Satellite L.L.C. , 93 AD3d 33, 45 [1st Dept 2012]).

Section 3126 allows a court to strike an answer for spoliation, but that sanction was unwarranted where the plaintiff showed neither willful or contumacious conduct nor an inability to prove her claim.

M. M. v. Macerich Prop. Mgt. Co., LLC · filed 2023-08-02

The Supreme Court providently exercised its discretion in denying the plaintiff's cross-motion pursuant to CPLR 3126 to strike the defendants' answer for spoliation of evidence. ... Even so, the Supreme Court providently exercised its discretion in determining that the extreme sanction of striking the defendants' answer was not warranted because the plaintiff failed to demonstrate that the defendants' conduct was willful or contumacious, or that the plaintiff was deprived of the ability to prove her claim ( see S.W. v Catskill Regional Med. Ctr. , 211 AD3d 890; N.H.R. v Deer Park Union Free Sch. Dist. , 180 AD3d at 825; Park Side Constr. Contrs., Inc. v Bryan's Quality Plus, LLC , 156 AD3d 804, 807).

CPLR 3126 permits a pleading to be struck for spoliation even when no discovery order was issued.

Wagman v. Morgan Stanley Children's Hosp. of N.Y. Presbyt. · filed 2023-10-12

Contrary to defendants' position, pleadings may be struck for spoliation in the absence of court-ordered discovery ( see Kirkland v New York City Hous. Auth. , 236 AD2d 170, 174-175 [1st Dept 1997]).

CPLR 3126 permits spoliation sanctions when a party fails to preserve evidence it had reason to know might be needed for future litigation.

Van DeVeerdonk v. North Westchester Restorative Therapy & Nursing Ctr. · filed 2024-01-17

Here, the Supreme Court properly denied the plaintiffs' motion pursuant to CPLR 3126 to impose sanctions against the defendants for spoliation of evidence. The plaintiffs did not establish that, at the time the surveillance footage was overwritten in December 2013, the defendants were on notice that the evidence might be needed for future litigation ( see Aponte v Clove Lakes Health Care & Rehabilitation Ctr., Inc. , 153 AD3d at 594; see also Sanders v 210 N. 12th St., LLC , 171 AD3d at 968; Tanner v Bethpage Union Free Sch. Dist. , 161 AD3d at 1211).

Section 3126 permits sanctions for destroyed evidence when the moving party shows a duty to preserve it, culpable destruction, and relevance to a claim or defense.

McGlynn v. Burns & Harris, Esq. · filed 2024-01-17

The Supreme Court providently exercised its discretion in denying the plaintiff's cross-motion pursuant to CPLR 3126 to strike the law firm defendants' answer for spoliation of evidence. "A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" ( Pegasus Aviation I, Inc. v Varig Logistica S.A. , 26 NY3d 543, 547 [internal quotation marks omitted]; see S.W. v Catskill Regional Med. Ctr. , 211 AD3d 890, 891-892). Here, the plaintiff failed to establish that the law firm defendants had an obligation to preserve the case file from the personal injury action or that it was destroyed with a culpable state of mind ( see Tanner v Bethpage Union Free Sch. Dist. , 161 AD3d 1210, 1211; Perez v Tedesco , 214 AD3d 1010, 1012).

Section 3126 permits a court to deem facts established and bar evidence when a party's spoliation deprives its opponent of relevant discovery.

Metropolitan Partners Fund IIIA, LP v. GemCap Lending I, LLC · filed 2024-01-30

Putting aside that the conduct further corroborates the allegations set forth in the TAC, the documents are unquestionably relevant and warrant, at a bare minimum, the factual admissions the Plaintiffs seek (NYSCEF Doc. No. 287).

Section 3126 does not warrant striking a complaint or precluding evidence for spoliation when the moving party fails to show that the lost evidence was critical or that its loss fatally compromised the defense.

Brenker v. S.R.N. Holding Corp. · filed 2024-02-20

Here, there has been no showing that the sneakers were critical evidence or that the lost sneakers fatally compromise Defendants' ability to defend the action. ... Accordingly, Defendants' request pursuant to CPLR § 3126 , to strike Plaintiffs' complaint for spoliation of critical evidence and/or precluding the plaintiffs from offering evidence as to the cause of their damages is DENIED.

Section 3126 permits an adverse inference charge when a party negligently fails to preserve relevant evidence, even if striking its pleading would be too severe.

Lovit v. New York City Tr. Auth. · filed 2024-07-23

Upon the foregoing documents, it is hereby by ORDERED that plaintiff's motion for discovery sanctions, pursuant to CPLR 3126, is GRANTED TO THE EXTENT that plaintiff shall be entitled to an adverse inference charge to the jury based on 1A PJl3d 1:77.3 due to defendants' negligent failure to preserve the bus video evidence of the subject accident, with the trial judge to determine the precise wording of the jury instruction ordered by this court, and the motion is otherwise denied.

Section 3126 permits a court to deny a motion to strike an answer for spoliation when the missing evidence has not been shown to deprive the movant of the ability to prove the claim.

Schaum v. Glass Gardens, Inc. · filed 2024-08-21

Here, the Supreme Court properly denied the plaintiff's motion pursuant to CPLR 3126 to strike the defendants' answer for spoliation of evidence. The plaintiff failed to show that the absence of video surveillance footage depicting the condition complained of as it existed three hours prior to the accident deprived her of her ability to prove her claim ( see Phelps-Vachier v Genovese Drug Stores, Inc. , 207 AD3d at 584; Hirschberg v Winthrop-University Hosp. , 175 AD3d at 557).

CPLR 3126(3) permits a court to strike a complaint as a spoliation sanction when grossly negligent destruction of relevant evidence warrants it.

Buffalo Biodiesel, Inc. v. Blue Bridge Fin., LLC · filed 2024-06-14(3)

The court has broad discretion in determining what, if any, sanction is warranted for spoliation of evidence, including "an order striking out pleadings or parts thereof" ( Miller v Miller , 189 AD3d 2089, 2094 [4th Dept 2020] [internal quotation marks omitted]; see CPLR 3126 [3]). ... Thus, on the facts presented in this action, we conclude that the court did not abuse its discretion in striking the complaint ( see Sage Realty Corp. , 275 AD2d at 18).

Section 3126(3) permits striking a complaint as a discovery sanction, but that extreme remedy requires an adequate showing.

Bayview Loan Servicing, LLC v. Evanson · filed 2024-09-11(3)

Here, contrary to the defendant's contention, the Supreme Court properly denied her motion pursuant to CPLR 3126(3) to strike the complaint insofar as asserted against her based on her failure to substantively comply with the requirements of 22 NYCRR 202.7 and 202.20-f(b) ( see Behar v Wiblishauser , 219 AD3d at 795; Muchnik v Mendez Trucking, Inc. , 212 AD3d at 641). In any event, the defendant's showing on the motion was wholly inadequate to warrant the extreme discovery sanction of striking the complaint ( see Cyngiel v Krigsman , 224 AD3d 875, 877; Moran v Grand Slam Ventures, LLC , 221 AD3d 994, 997; Rivera v Caban , 214 AD3d 832, 833; U.S. Bank N.A. v Hadar , 206 AD3d 688, 690).

Section 3126(3) leaves the choice of a discovery sanction to the court's discretion; striking a pleading may be too severe for the noncompliance shown.

Jane-Horatio LLC v. Caccavale · filed 2024-09-24(3)

Here, the drastic penalty sought by landlord was not commensurate with the alleged disobedience ( see Cespedes v Mike & Jac Trucking Corp. , 305 AD2d 222 [2003]).

Section 3126 does not warrant striking a complaint when the plaintiff substantially complies with discovery demands and the plaintiff's conduct is not willful and contumacious.

Gibson v. Delemos · filed 2024-10-02

Accordingly, in view of the public policy favoring resolution of actions on the merits ( see Malek v Malek , 208 AD3d 773, 775), the Supreme Court improvidently exercised its discretion in granting that branch of the defendants' motion which was pursuant to CPLR 3126 to strike the complaint.

A motion for spoliation sanctions under CPLR 3126 must be decided before a summary judgment motion when the requested sanctions could affect the movant’s ability to establish entitlement to judgment.

Hudesman v. Dawson Holding Co. · filed 2024-08-28

Here, since the decedent's motion pursuant to CPLR 3126 to strike the defendants' answer or, in the alternative, for an adverse inference instruction at trial for spoliation of evidence sought sanctions that would impact the defendants' ability to establish, prima facie, that they were [*2]entitled to judgment as a matter of law on the issue of liability, the Supreme Court should have considered the merits of the decedent's motion before rendering a determination on the issue of liability on the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them ( see C.K. v City of New York , 216 AD3d 753, 757; see also Van DeVeerdonk v North Westchester Restorative Therapy & Nursing Ctr. , 223 AD3d 702; M.B. v St. Francis Preparatory Sch. , 219 AD3d 1399).

Section 3126 permits an adverse inference instruction for negligent spoliation when the lost evidence prejudices a party but other evidence remains available.

Castillo v. Cannon Point S., Inc. · filed 2024-09-06

Here, plaintiffs motion is granted only to the extent that plaintiff is entitled to an adverse inference charge at the time of trial. Given that plaintiff has deposed non-party witnesses and has been furnished a copy of the injury causing incident video footage, his case has not been fatally compromised by the alleged spoliation (see Jackson v Whitson 's Food Corp., 130 AD3d 461, 463 [1st Dept 2015]).

A party seeking spoliation sanctions under CPLR 3126 must make a motion; alleging spoliation in opposition to summary judgment is insufficient.

Kavenaght v. 498 Seventh, LLC · filed 2024-10-02

Contrary to the plaintiff's contention, the Supreme Court properly declined to deny the defendant's motion for summary judgment dismissing the complaint based on the alleged spoliation of the staircase in the absence of a motion pursuant to CPLR 3126 seeking spoliation sanctions ( see CPLR 2211, 2214[a], 2215; Khaolaead v Leisure Video , 18 AD3d 820, 821).

CPLR 3126 permits courts to tailor spoliation sanctions, including an adverse inference and striking an affirmative defense.

Lev v. Eataly USA LLC · filed 2024-10-08

Order, Supreme Court, New York County (Adam Silvera, J.), entered April 16, 2024, which granted plaintiffs' motion for discovery sanctions pursuant to CPLR 3126 insofar as it struck defendants' answer for spoliation of evidence, unanimously modified, on the law and the facts, to vacate the sanction of striking Eataly's answer, substitute as a sanction an adverse inference against Eataly on the issue of prior notice of the alleged slippery hazard, and to strike the fourth affirmative defense in defendants' answer, and otherwise affirmed, without costs.

Section 3126 permits sanctions, including an adverse inference charge, when a party spoliates evidence.

Pai v. Nelson Senior Hous. Dev. Fund Corp. · filed 2024-11-20

Here, while the spoliation of the elbow joint pipe did not deprive the plaintiffs of their ability to prove their claim so as to warrant the drastic sanction of striking an answer, under the circumstances of this case, the lesser sanction of directing that an adverse inference charge be given against the Excelsior defendants, Riso, VIS, and Kwok at trial with respect to the spoliation of the elbow joint pipe is appropriate ( see Dagro Assoc. II, LLC v Chevron U.S.A., Inc. , 206 AD3d 793).

Section 3126 gives courts discretion to impose proportionate sanctions for lost or destroyed evidence, including preclusion and adverse inference instructions.

AIG Prop. Cas. Co. v. MTS Power Sys. · filed 2024-10-22

In imposing spoliation sanctions, "courts possess broad discretion to provide proportionate relief to a party deprived of lost or destroyed evidence, including [precluding] proof favorable to the spoliator to restore balance . . . [and] employing an adverse inference instruction at the trial" ( Pegasus Aviation I, Inc. v Varig Logistica S.A. , 26 NY3d 543, 551 [2015]; see also Ortega v City of New York , 9 NY3d 69, 76 [2007]; CPLR 3126).

Section 3126 permits sanctions for spoliation when a party negligently loses or intentionally destroys key evidence and the evidence was subject to preservation, destroyed culpably, and relevant to the claim or defense.

De Abreu v. Syed Rests. Enters., Inc. · filed 2024-10-30

"Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126" ( M.B. v St. Francis Preparatory Sch. , 219 AD3d 1399, 1401 [internal quotation marks omitted]; see Sanders v 210 N. 12th St., LLC , 171 AD3d 966, 968). ... "A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" ( M.B. v St. Francis Preparatory Sch. , 219 AD3d at 1401 [internal quotation marks omitted]; see Pegasus Aviation I, Inc., v Varig Logistica S.A. , 26 NY3d 543, 547; Gregorian v New York Life Ins. Co. , 211 AD3d 706, 709). ... "Thus, upon reargument, the Supreme Court should have denied that branch of the plaintiff's motion which was pursuant to CPLR 3126 to preclude the defendants from offering evidence on the issue of liability."

Section 3126 permits sanctions for spoliation when a party negligently loses or intentionally destroys key evidence, subject to showing a preservation obligation, culpable state of mind, and relevance.

Wang v. New York City Tr. Auth. · filed 2024-11-13

"Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126" ( Holland v W.M. Realty Mgt., Inc. , 64 AD3d 627, 629). "'A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense'" ( Gregorian v New York Life Ins. Co. , 211 AD3d 706, 709, quoting Pegasus Aviation I, Inc. , ... 26 NY3d 543, 547).

Section 3126 permits spoliation sanctions when a party destroys evidence it had a duty to preserve, but sanctions are unwarranted if that duty had not arisen when the evidence was destroyed.

Riptide Autonomous Solutions, LLC v. BAE Sys. Info. & Elec. Sys. Integration Inc. · filed 2025-01-07

"Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126." ... As Riptide has failed to establish that BAE was under a duty to preserve evidence when the Smiths' email accounts were deleted, the court need not consider the balance of parties' arguments.

CPLR 3126 does not warrant spoliation sanctions when the movant fails to show that the party had notice, when the evidence was deleted, that it might be needed for future litigation.

Gordon v. Field · filed 2025-01-22

Here, the Supreme Court properly denied Dykshteyn's motion, in effect, pursuant to CPLR 3126 to impose sanctions against Field and Volman for spoliation of evidence or, in the alternative, for a hearing on the issues of whether Field and Volman acted willfully or negligently in disposing of the evidence and the timing of the disposal of the evidence. Dykshteyn did not establish that Field and Volman were on notice that the emails might be needed for future litigation when they were deleted ( see McGlynn v Burns & Harris, Esq. , 223 AD3d at 736; Tanner v Bethpage Union Free Sch. Dist. , 161 AD3d at 1211; Aponte v Clove Lakes Health Care & Rehabilitation Ctr., Inc. , 153 AD3d at 594).

CPLR 3126 spoliation sanctions require a duty to preserve the evidence when it was destroyed, a culpable state of mind, and relevance to a claim or defense.

Rhoden v. 515 Rest., LLC · filed 2025-04-30

The Supreme Court providently exercised its discretion in denying the plaintiff's cross-motion pursuant to CPLR 3126 to impose sanctions against the defendant for spoliation of evidence. "'A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense'" ( Tanner v Bethpage Union Free Sch. Dist. , 161 AD3d 1210, 1211, quoting Pegasus Aviation I, Inc. v Varig Logistica S.A. , 26 NY3d 543, 547). ... Here, the plaintiff failed to establish that the defendant intentionally or negligently failed to preserve the surveillance video after being placed on notice that the evidence might be needed for future litigation ( see De Abreu v Syed Rests. Enters., Inc. , 231 AD3d 1116; McGlynn v Burns & Harris , 223 AD3d 733, 736).

Section 3126(2) sanctions may be denied when a party waives its right to witness information by failing to pursue its disclosure under conference orders.

Schiff v. Intersystem S&S Corp. · filed 2025-03-31(2)

None of the subsequent conference orders—the last of which is from October 2022—reference the exchange of witness information (NYSCEF Doc Nos 41, 75, 108, 124, 130, 133); therefore, plaintiff waived his right to this information from Intersystem (Alvarez v Feola, 140 AD3d 596, 597 [1st Dept 2016] [“defendant waived his right to a medical examination since he ‘willfully refused or simply failed to avail [himself] of the opportunity’ to conduct plaintiff’s medical examination within the deadlines set forth in the preliminary and compliance conference orders”] [quoting Rosenberg & Estis, P.C. v Bergos, 18 AD3d 218, 218 [1st Dept 2005]). ... Accordingly, the part of plaintiff’s cross-motion seeking sanctions against Intersystem will be denied, and the parties will be scheduled to appear for a status conference since the note of issue has not been filed.

Section 3126 permits spoliation sanctions, and a court may hold an evidentiary hearing to resolve disputed facts before deciding whether to impose them.

Greater N.Y. Mut. Ins. Co. v. SKOUT Monitoring, LLC · filed 2025-04-30

Here, the record raises issues of fact as to whether the alleged deficiencies in SKOUT’s document productions impact GNY’s claims and if so, whether and to what extent the plaintiff is entitled to a sanction pursuant to CPLR 3126 for spoliation of evidence. ... As such, the Court remains of the view that the issues raised here can only be ... decided after an evidentiary hearing or trial.

CPLR 3126 permits spoliation sanctions for lost or destroyed key evidence, but the movant must establish a culpable failure to preserve it and harm to the ability to prove a claim.

Washington v. Church & Nostrand Apparel Corp. · filed 2025-05-21

"Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126" ( Garcia v Emerick Gross Real Estate, L.P. , 196 AD3d 676, 679 [internal quotation marks omitted]). ... Here, the plaintiff failed to establish that the defendant intentionally or negligently failed to preserve the surveillance footage from the date of the incident or that the defendant's failure to do so deprived her of the ability to prove her claim ( see M.B. v St. Francis Preparatory Sch. , 219 AD3d 1399, 1401-1402; Milazzo v Best Mkt. , 207 AD3d 535, 537).

CPLR 3126 permits spoliation sanctions, including an adverse inference, when a party negligently fails to preserve evidence.

Rose v. Phaidon Intl. · filed 2025-07-01

Pursuant to CPLR 3126, sanctions are available where a party refuses to comply with a discovery order or for willful failure to disclose. ... Therefore, even if Wong did not intentionally and knowingly allow the text messages to be deleted, spoliation sanctions are nonetheless warranted because his actions here ... were at the very least negligent. Therefore, plaintiff is entitled to an adverse inference at the time of trial.

Section 3126 permits sanctions for spoliation of evidence when the party seeking them shows a duty to preserve the evidence, culpable destruction, and relevance to a claim or defense.

Octobre v. Soiefer · filed 2025-07-02

Additionally, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 3126 to strike the Congregation's answer or to preclude the Congregation from moving for summary judgment for spoliation of evidence. "A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" ( Pegasus Aviation I, Inc. v Varig Logistica S.A. , 26 NY3d 543, 547 [internal quotation marks omitted]; see Schaum v Glass Gardens, Inc. , 230 AD3d 711, 712).

CPLR 3126 permits a court to strike a complaint when negligent loss of key evidence prevents the defense from litigating its case without speculation.

Laporte v. New York City Hous. Auth. · filed 2025-10-29

The Supreme Court properly, upon reargument, adhered to its prior determination granting the defendant's motion pursuant to CPLR 3126 to strike the complaint on the ground of spoliation of evidence based on the plaintiff's counsel's negligent failure to preserve key pieces of evidence that were crucial to the defense in this action ( see Schimicci v Dermpath, Inc. , 49 AD3d 626, 626; Neal v Easton Aluminum, Inc. , 15 AD3d 459, 460; Cabasso v Goldberg , 288 AD2d 116, 117).

Section 3126 permits dismissal for spoliation when the loss of crucial evidence substantially impairs an opposing party’s ability to defend.

LaRose v. City of New York · filed 2025-11-19

Accordingly, the Supreme Court providently exercised its discretion in granting the respective applications of Verizon, Ruggiero, and the City pursuant to CPLR 3126 to dismiss the second amended complaint insofar as asserted against each of them for spoliation of evidence and in denying that branch of the plaintiff's motion which was to vacate so much of the order dated June 1, 2022, as granted those applications ( see Lentini v Weschler , 120 AD3d 1200, 1201; Schimicci v Dermpath, Inc. , 49 AD3d 626, 626).

Section 3126 permits a court to deny a request to strike an answer for spoliation when the movant fails to show culpable loss of evidence or notice that the evidence might be needed for litigation.

Atsaves v. El Caribe Caterers, LLC · filed 2026-03-25

Here, the Supreme Court providently exercised its discretion in denying that branch of Victory's motion which was pursuant to CPLR 3126 to strike El Caribe's answer for spoliation of evidence. Victory did not establish that El Caribe intentionally or negligently failed to preserve the video surveillance footage or that El Caribe was placed on notice that the video surveillance footage might be needed for future litigation before it was automatically deleted ( see De Abreu v Syed Rests. Enters., Inc. , 231 AD3d 1116, 1118; Van DeVeerdonk v North Westchester Restorative Therapy & Nursing Ctr. , 223 AD3d 702, 704).

CPLR 3126 permits an adverse inference charge for the negligent loss of relevant evidence when precluding a witness would be too severe.

Jorgge v. Stop & Shop Supermarket Co., LLC · filed 2026-05-13

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof precluding a certain witness from testifying at trial, and substituting therefor a provision directing that an adverse inference charge be given against the defendant at trial; as so modified, the order is affirmed, with costs to the defendant.

Section 3126 sanctions require notice and an opportunity to respond, even though the section does not expressly require formal notice.

Warner v. Houghton · filed 2007-08-30

Although CPLR 3126 does not specifically require that formal notice be given, this Court has found that the same due process protections afforded under CPLR 3124 (motions to compel disclosure) should also be imposed when sanctions are sought (Postel v New York Univ. Hosp., 262 AD2d 40, 42 [1999]).

CPLR 3126 requires a motion on notice before a court strikes a pleading for failure to comply with discovery.

Boyle v. City of New York · filed 2000-02-01

However, we have held that the drastic remedy of striking a pleading for failure to comply with discovery should not be made in a preliminary conference order, but rather, must be made by motion, on notice (Postel v New York Univ. Hosp., 262 AD2d 40, 42). Consequently, the order cannot stand.

CPLR 3126 leaves the choice of discovery penalty to the trial court’s discretion, but striking a pleading requires willful or contumacious conduct.

DeCintio v. Ahmed · filed 2000-10-02

Although the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is generally1 a matter left to the sound discretion of the trial .court, the harsh penalty of striking a pleading should only be imposed when the conduct of a party is shown to be willful or contumacious (see, Smith v New York Tel. Co., 235 AD2d 529). In this case, the record does not show that the plaintiffs failure to comply with prior court orders, including her failure to appear at the deposition of one of the defendant physicians, was willful or contumacious.

CPLR 3126 permits striking a pleading for refusal to disclose only when the refusal is shown to be willful and contumacious.

Executive Aviation Services, Inc. v. Flightways of Long Island, Inc. · filed 2005-02-28

The Supreme Court properly denied the defendant’s motion to strike the complaint pursuant to CPLR 3126. The harsh remedy of striking a pleading should be withheld in the absence of a showing, as here, of a willful and contumacious refusal to disclose (see Cruzatti v St. Mary’s Hosp., 193 AD2d 579 [1993]).

When a party has responded to discovery requests, the movant should seek to compel further disclosure before moving under Section 3126 to strike the complaint.

Double Fortune Property Investors Corp. v. Gordon · filed 2008-10-21

Plaintiff having responded to defendant’s discovery requests, the proper course for defendant, rather than moving to strike the complaint pursuant to CPLR 3126, was first to move to compel further discovery pursuant to CPLR 3124 (see Barber v Ford Motor Co., 250 AD2d 552 [1998]).

Dismissal under CPLR 3126 requires a motion requesting that relief.

Christiano v. Heatherwood House at Holbrook II, LLC · filed 2020-07-15

Contrary to the respondents' contention, this action could not have properly been dismissed pursuant to CPLR 3126, since there was no motion requesting this relief ( see Goodman v Lempa , 124 AD3d 581; Arroyo v Board of Educ. of City of N.Y. , 110 AD3d 17, 19; Mitskevitch v City of New York , 78 AD3d 1137, 1138).

Section 3126 requires notice and an opportunity to be heard before a court imposes the drastic sanction of preclusion for discovery noncompliance.

Korsinsky & Klein, LLP v. FHS Consultants, LLC · filed 2023-03-29

Here, the Supreme Court improvidently exercised its discretion by imposing the drastic sanction of preclusion upon the plaintiff without affording the plaintiff adequate notice and an opportunity to be heard, including on facts relevant to whether the plaintiff's noncompliance was willful and contumacious.

CPLR 3126 does not authorize an award of sanctions when the party seeking them did not move for sanctions under the section.

Burns v. Burns · filed 2024-07-24

The court erred in awarding the plaintiff attorneys' fees and disbursements pursuant to CPLR 3126 because the plaintiff did not move to impose sanctions on the defendant pursuant to CPLR 3126.

When a party has served some discovery responses, striking its pleading under CPLR 3126 generally requires a prior motion to compel further discovery.

Sosa v. Law Offs. of Jose A. Polanco · filed 2025-05-30

However, where a party has served some discovery responses, a motion to strike for failure to comply with discovery demands must generally be preceded by a motion to compel (see Double Fortune Prop. Investors Corp. v Gordon, 55 AD3d 406, 407 [1st Dept 2008] [“[T]he proper course for defendant, rather than moving to strike the complaint pursuant to CPLR 3126, was first to move to compel further discovery pursuant to CPLR 3124.”]). ... Here, although the record reflects defendants’ repeated failure to comply with court-ordered discovery over an extended period, including nonappearance at two court-ordered conferences and the late service of deficient responses within the past year, plaintiff has not moved to compel with respect to the most recent responses.

When sanctions are awarded under CPLR 3126 and 22 NYCRR 130-1.1, the court should specify what portion, if any, is awarded under each authority.

Miller v. DeCongilio · filed 2000-02-22

If upon remittitur the Supreme Court determines that a sanction is warranted it should set forth what portion of the sanction, if any, was awarded pursuant to 22 NYCRR 130-1.1, and what portion was awarded pursuant to CPLR 3126.

Section 3126 does not list contempt as a sanction for a party’s failure to comply with disclosure.

Ping Lee v. Lin · filed 2000-06-05

Contempt is not a sanction listed in CPLR 3126 for a party’s failure to comply with disclosure.

Section 3126 provides remedies for discovery violations but does not list contempt as a penalty for routine discovery disputes.

Lopez v. New York City Transit Authority · filed 2011-06-16

The Transit Authority’s resort to a contempt motion on a routine discovery dispute absent application for any other remedy under CPLR 3126 is wholly inexplicable and equally meritless.

A missing witness charge is not warranted as a CPLR 3126 discovery sanction when the circumstances do not justify it.

McLeod v. Brooklyn Union Gas Co. · filed 2001-04-23

Under the circumstances of this case, the Supreme Court should not have directed a missing witness charge in favor of the plaintiffs upon the appellant’s failure to comply with certain discovery.

CPLR 3126 authorizes just sanctions but does not expressly authorize fees incurred to obtain a fee award.

Sage Realty Corp. v. Proskauer Rose L. L. P. · filed 2001-11-01

It has been established that an award of fees on fees must be based on a statute or on an agreement (see, Hempstead Gen. Hosp. v Allstate Ins. Co., 106 AD2d 429, 431, affd 64 NY2d 958), and CPLR 3126, although relied upon by the motion court to authorize a fees on fees award in this matter, does not explicitly grant courts authority to award fees on fees, but only the general authority to impose such sanctions as “are just.”

Section 3126 does not permit further discovery sanctions based on conduct covered by an earlier order that gave the parties a clean slate, absent a later discovery default.

Carpenter v. Browning-Ferris Industries, Inc. · filed 2003-07-03

Because the court had given both plaintiff and BFI a “clean slate” in the March 13, 1998 order, it could not properly consider further discovery sanctions against plaintiff absent further discovery defaults by her.

A motion for CPLR 3126 sanctions is moot when the responding party has complied with the court's discovery orders and there is no evidence of willful non-compliance.

Timmons v. State of New York · filed 2024-09-03

This Court have previously held in its Decision and Order dated February 16, 2023, that Defendant has provided the requested discovery in compliance with the Court's orders and finds that there is no evidence of willful non-compliance. Accordingly, it is hereby ORDERED , that Claimant's motion number M-100465 is DENIED as MOOT .

CPLR 3126 permits sanctions against an attorney for conduct during disclosure, subject to the trial court’s broad discretion.

Isakbayeva v. Thompson · filed 2004-04-12

Contrary to the contention of the appellant, the defendant’s attorney, the Supreme Court providently exercised its broad discretion, to which we accord substantial deference, in imposing a sanction upon him pursuant to CPLR 3126 for his conduct during disclosure (see Zletz v Wetanson, 67 NY2d 711, 713 [1986]; Orner v Mount Sinai Hosp., 305 AD2d 307, 309 [2003]; Jaffe v Hubbard, 299 AD2d 395 [2002]; New v Scores Entertainment, 255 AD2d 108 [1998]; Taub v Wulwick, 168 AD2d 492, 493 [1990]; Miller v Duffy, 126 AD2d 527, 528 [1987]; Sawh v Bridges, 120 AD2d 74, 77-78 [1986]; cf. Bach v City of New York, 304 AD2d 686 [2003]).

A CPLR 3126 motion for disclosure sanctions may be denied if it lacks the required attorney’s affirmation of good faith.

Pandolf v. American International Group, Inc. · filed 2005-03-29

Also upon renewal, defendant’s CPLR 3126 motion, which was made without the required attorney’s affirmation of good faith (22 NYCRR 202.7 [a] [2]), was properly denied (see Sixty-Six Crosby Assoc. v Berger & Kramer, 256 AD2d 26 [1998]), on condition that plaintiffs attorney pay defendant a sum due to his unexplained failures to appear at a scheduled deposition and to respond to document demands and interrogatories.

A motion for disclosure sanctions under CPLR 3126 may be denied if the movant fails to submit a good-faith affirmation satisfying 22 NYCRR 202.7.

Chichilnisky v. Trustees of Columbia University · filed 2007-11-15

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered January 30, 2007, which denied defendant’s motion pursuant to CPLR 3126 for disclosure sanctions, and order, same court and Justice, entered March 23, 2007, which denied defendant’s motion to renew, unanimously affirmed, without costs. ... Defendant’s motion for disclosure sanctions was properly denied for lack of a 22 NYCRR 202.7 affirmation of good faith ... (see Cerreta v New Jersey Tr. Corp., 251 AD2d 190 [1998]; Barnes v NYNEX, Inc., 274 AD2d 368 [2000]).

A party moving to strike a complaint under CPLR 3126 for disclosure violations must submit an affirmation of a good faith effort to resolve the dispute.

Brown v. Coca · filed 2011-04-20

Although no one appeared or submitted opposition to Keating’s motion it is nevertheless denied for the following reasons. Keating has sought to strike plaintiffs complaint pursuant to CPLR 3126 for failure to comply with Keating’s disclosure demands and for failure to comply with a preliminary conference order and compliance conference order directing certain discovery. The two reasons advanced are both premised on alleged disclosure violations. However, contrary to the requirements of part 202 of the Uniform Rules for the New York State Trial Courts (22 NYCRR) at section 202.7, Keating did not submit an affirmation that he conferred with his opponent in a good faith effort to resolve the disclosure dispute before making the instant motion.

A party seeking to strike a pleading under CPLR 3126 must submit an affirmation describing counsel’s good faith effort to resolve the discovery dispute.

241 Fifth Avenue Hotel v. GSY Corp. · filed 2013-10-08

A party moving to strike a pleading pursuant to CPLR 3126 is required to submit an affirmation that counsel for the moving party has made “a good faith effort to resolve the issues raised by the motion” with opposing party’s counsel (Uniform Rules for Trial Cts [22 NYCRR] § 202.7 [a] [2]).

A party seeking to strike a pleading under CPLR 3126 for failure to respond to discovery demands must show a good faith effort to resolve the dispute.

GRASSO, BARBARA v. MCCOY, ROBERT · filed 2014-01-03

Supreme Court erred in granting defendant’s motion to strike the amended complaint pursuant to CPLR 3126 based upon plaintiff’s failure to respond to discovery demands. The affirmation submitted by defendant’s attorney in support of the motion failed to demonstrate that he “ha[d] conferred with counsel for [plaintiff] in a good faith effort to resolve the issues raised by the motion” (Uniform Rule for Trial Cts [22 NYCRR] § 202.7 [a] [2]; see Kane v Shapiro, Rosenbaum, Liebschutz, & Nelson, L.L.P., 57 AD3d 1513, 1513-1514).

A motion to dismiss under CPLR 3126 (3) must be denied if the movant fails to submit the required affirmation of a good faith effort to resolve the disclosure dispute.

Perez v. Stonehill · filed 2014-10-22(3)

The Supreme Court improperly granted the defendants’ motion pursuant to CPLR 3126 (3) to dismiss the complaint as a sanction for the plaintiff’s failure to comply with certain discovery. The defendants’ failure to submit an affirmation of the parties’ good faith effort to resolve the disclosure dispute pursuant to 22 NYCRR 202.7 (a) (2) in connection with their motion required the denial of the motion (see Matter of Greenfield v Board of Assessment Review for Town of Babylon, 106 AD3d 908 [2013]; Natoli v Milazzo, 65 AD3d 1309, 1310-1311 [2009]; Romero v Korn, 236 AD2d 598 [1997]).

A motion to strike a pleading under CPLR 3126 (3) may be denied when the movant fails to submit the good faith affirmation required by 22 NYCRR 202.7 (a) (2).

Congregation Beth Shalom of Kingsbay v. Yaakov · filed 2015-07-15(3)

Further, the Supreme Court properly denied that branch of PIC’s motion which was pursuant to CPLR 3126 (3) to strike the complaint insofar as asserted against it, since PIC failed to submit an affirmation of good faith pursuant to 22 NYCRR 202.7 (a) (2) (see Perez v Stonehill, 121 AD3d 960, 961 [2014]; 30-40 E. Main St. Bayshore, Inc. v Republic Franklin Ins. Co., 115 AD3d 737, 738 [2014]; Matter of Greenfield v Board of Assessment Review for Town of Babylon, 106 AD3d 908, 908 [2013] ).

A motion to dismiss under CPLR 3126 must include an affirmation describing the movant’s efforts to resolve the discovery dispute.

Vera v. New York Elevator & Electrical Corp. · filed 2017-05-03

Further, as to that branch of the defendant’s motion which was pursuant to CPLR 3126 to dismiss the complaint, the affirmation of good faith that was submitted by the defendant’s counsel was insufficient because it did not refer to any effort by the defendant to resolve the discovery dispute (see 22 NYCRR 202.7 [a], [c]; Natoli v Milazzo, 65 AD3d 1309, 1310-1311 [2009]).

A motion for CPLR 3126 sanctions must be denied when counsel's good faith affirmation gives no details of efforts to resolve the discovery dispute.

Bronstein v. Charm City Hous., LLC · filed 2019-08-07(3)

Pursuant to 22 NYCRR 202.7(a) and (c), a motion relating to disclosure must be accompanied by an affirmation from moving counsel attesting to a good faith effort to resolve the issues raised in the motion, including the time, place and nature of the consultation as well as the issues discussed. Here, the affirmation of good faith submitted by the defendants' counsel in support of the cross motion for sanctions pursuant to CPLR 3126 failed to provide any detail of the claimed efforts to resolve the issues. While the defendants' counsel asserted that he had conversations with the plaintiff's counsel, he did not identify the dates of such conversations or the name of the attorney with whom he conversed. Therefore, the cross motion should have been denied ( see Ovcharenko v 65th Booth Assoc. , 131 AD3d 1144, 1144-1145; Martinez v 1261 Realty Co., LLC , 121 AD3d 955, 956-957; Matter of Greenfield v Board of Assessment Review for Town of Babylon , 106 AD3d 908, 908; Natoli v Milazzo , 65 AD3d 1309, 1310-1311).

A motion for sanctions under CPLR 3126 is subject to the good faith requirements of 22 NYCRR 202.7; insufficient efforts to resolve the discovery dispute can warrant denial.

Anuchina v. Marine Transp. Logistics, Inc. · filed 2023-05-31

However, the Supreme Court properly denied the plaintiff's motion due to her attorney's failure to comply with the good faith requirements of 22 NYCRR 202.7. ... Moreover, contrary to the plaintiff's contention, the rule was applicable to her motion ( see e.g. Steele v Samaritan Found., Inc. , 208 AD3d at 1266-1267; Bronstein v Charm City Hous., LLC , 175 AD3d 454, 454-455). Accordingly, the Supreme Court properly denied the plaintiff's motion pursuant to CPLR 3126, inter alia, to strike the defendants' answer.

A motion to strike a pleading under CPLR 3126 for a disclosure dispute requires a good faith effort to resolve the dispute first.

Scott v. New York City Tr. Auth. · filed 2025-04-11

Contrary to the argument of plaintiff’s counsel, the branch of plaintiff’s motion to strike defendants’ answer is a discovery motion that is subject to the good faith requirement under 22 NYCRR 202.20-f. As discussed in greater detail in the following paragraphs, the court finds that plaintiff’s counsel did not engage in a “good faith effort to resolve all disputes about disclosure” (22 NYCRR 202.20-f [b]). Therefore, the branch of plaintiff’s motion to strike the answer, pursuant to CPLR 3126, is denied (Bayview Loan Servicing, LLC v Evanson, 230 AD3d 1091, 1092 [2d Dept 2024]).

A motion for CPLR 3126 sanctions based on disclosure conduct requires an affirmation of good faith under 22 NYCRR 202.7(a).

Continuum Energy Tech., LLC v. Iron Oak, Inc. (USA) · filed 2026-01-08

Plaintiffs point out that they moved pursuant to 22 NYCRR 130-1.1 (monetary sanctions) as well as CPLR 3126. However, their motion still related to disclosure (22 NYCRR 202.7[a]) because they sought sanctions based on the conduct of defendant Rajiv Gosain at a deposition and on defendants' purported nonresponse to plaintiffs' objections to defendants' privilege log. Therefore, an affirmation of good faith was still required ( see Tokayer v Kosher Sports Inc., 178 AD3d 641, 641 [1st Dept 2019]).

An order striking an answer under CPLR 3126 is equivalent to a default in answering, so the plaintiff must seek a default judgment within the time required by CPLR 3215.

Jones v. Corley · filed 2006-12-05

Entry of an order pursuant to CPLR 3126 striking an answer is the equivalent of a default in answering, and a plaintiff’s right to recover upon a defendant’s default in answering is governed by CPLR 3215 (see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730 [1984]; Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568 [1978]; Fappiano v City of New York, 5 AD3d 627 [2004]).

Section 3126 permits a court to strike an answer for discovery misconduct, but denial is proper when the conduct has not been shown to be willful and contumacious.

Gilbert v. Kingsbrook Jewish Center · filed 2007-02-13

The Supreme Court providently exercised its discretion in denying the plaintiffs motion pursuant to CPLR 3126 to strike ... the answer of the defendant Serge Elevator Co., Inc. (hereinafter Serge), since there was no showing that Serge’s actions were willful and contumacious (see Moog v City of New York, 30 AD3d 490 [2006]).

Striking a complaint under CPLR 3126 (3), without granting preclusion, does not by itself make the dismissal a decision on the merits.

Daluise v. Sottile · filed 2007-05-15(3)

Contrary to the defendant’s contention and the Supreme Court’s determination, the order dated December 1, 2003, did not grant preclusion. By its terms, it granted only the relief sought pursuant to CPLR 3126 (3), namely, to strike the complaint.

Striking an answer under CPLR 3126 requires a clear showing that failure to comply with discovery demands was willful and contumacious.

Denoyelles v. Gallagher · filed 2007-05-29

The “drastic remedy” of striking an answer pursuant to CPLR 3126 is warranted when there is “a clear showing” that the failure to comply with discovery demands was willful and contumacious (Fellin v Sahgal, 268 AD2d 456, 456 [2000]).

Section 3126 does not automatically strike an answer for delayed discovery when the party substantially complies and its conduct is not willful or contumacious.

Carlos v. 395 E. 151st Street, LLC · filed 2007-06-14

In addition, there was no evidence that defendants’ actions were willful or contumacious (see CPLR 3126). Given the settled preference for resolving cases on their merits, we reject plaintiffs argument that defendants’ answer was automatically stricken (Cruzatti v St. Mary’s Hosp., 193 AD2d 579 [1993]).

An order striking a defendant’s answer under CPLR 3126 is equivalent to a default in answering.

Litvinskiy v. May Entertainment Group, Inc. · filed 2007-10-02

An order pursuant to CPLR 3126 striking a defendant’s answer is the equivalent of a default in answering (see Fappiano v City of New York, 5 AD3d 627, 628 [2004]).

A court may deny a motion under CPLR 3126 to strike a defendant’s answer.

Williams v. Hempstead School District · filed 2007-12-04

The Supreme Court properly denied the plaintiffs motion, inter alia, pursuant to CPLR 3126 to strike the defendants’ answer (see Goll v American Broadcasting Cos., Inc., 10 AD3d 672 [2004]).

Section 3126 permits a court to deny a motion to strike an answer for incomplete interrogatory responses when fuller responses could not create a triable issue of fact.

Hammer v. Cablevision of Boston, Inc. · filed 2007-12-31

Upon a careful reading of the papers submitted, including two memoranda of law by Cablevision, plaintiffs motion to strike Cablevision’s answer is denied and the court concludes that there are no triable issues of fact, nor could there be any, even if plaintiffs interrogatories were responded to more fully.

Section 3126 permits striking an answer for discovery misconduct when the conduct is shown to be willful, contumacious or in bad faith.

Mangual v. New York City Transit Authority · filed 2008-02-05

The court properly denied plaintiff’s motion to strike defendant’s answer since there was no showing that defendant’s conduct during discovery was willful, contumacious or in bad faith (CPLR 3126; see Guzetti v City of New York, 32 AD3d 234 [2006]).

Section 3126 permits a court to strike an answer when prolonged noncompliance with court-ordered disclosure supports an inference of willful and contumacious conduct.

Bryant v. New York City Housing Authority · filed 2010-01-19

Defendant’s pattern of noncompliance with court-ordered disclosure over a period of over two years created an inference of willful and contumacious conduct warranting the sanction of striking the answer (see Figiel v Met Food, 48 AD3d 330 [2008]; Brewster v FTM Servo, Corp., 44 AD3d 351 [2007]).

A CPLR 3126 sanction striking an answer as to liability can leave causation and defenses concerning damages for trial.

Olmsted v. Pizza Hut of America, Inc. · filed 2011-02-24

The court then resolved the issue of liability in plaintiffs favor by striking the relevant portions of defendant’s answer pursuant to CPLR 3126. ... Here, Supreme Court (Garry, J.) clearly preserved all issues related to damages, including any defenses thereto.

An order under CPLR 3126 striking an answer has the same effect as a default in answering.

Richter v. Sportsmans Properties, Inc. · filed 2011-03-01

“Entry of an order pursuant to CPLR 3126 striking an answer is the equivalent of a default in answering” (Fappiano v City of New York, 5 AD3d 627, 628 [2004]; see Rokina Opt. Co. v Camera King, 63 NY2d 728 [1984]; Pisciotta v Lifestyle Designs, Inc., 62 AD3d 850, 852 [2009]).

Section 3126 permits a court to refuse to strike an answer when the requesting party fails to establish willful and contumacious conduct.

Ventura v. Ozone Park Holding Corp. · filed 2011-05-10

The court providently exercised its discretion in refusing to strike 3 Kings’s answer (see CPLR 3126). Plaintiff failed to establish that 3 Kings engaged in willful and contumacious ... conduct (see Pezhman v Department of Educ. of the City of N.Y., 79 AD3d 543 [2010]).

Section 3126 permits a court to strike an answer for discovery noncompliance only upon a clear showing that the failure was willful or contumacious.

Lai v. Mack · filed 2011-11-22

However, the drastic remedy of striking an answer is inappropriate absent a clear showing that the defendant’s failure to comply with discovery demands was willful or contumacious (see Polsky v Tuckman, 85 AD3d 750 [2011]; Moray v City of Yonkers, 76 AD3d 618 [2010]; Pirro Group, LLC v One Point St., Inc., 71 AD3d 654 [2010]; Dank v Sears Holding Mgt. Corp., 69 AD3d 557 [2010]). Here, the plaintiffs failed to make such a showing.