Elmaleh v. Vroom ( 2018 )

Elmaleh v Vroom (2018 NY Slip Op 02743)

Elmaleh v Vroom

2018 NY Slip Op 02743

Decided on April 19, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 19, 2018
Friedman, J.P., Richter, Andrias, Kapnick, Webber, JJ.

6324N

[*1] Bethany Elmaleh, Plaintiff-Respondent,

v

Edwin G. Vroom, Defendant-Appellant, Brady Willis, Defendant.

Law Office of James J. Toomey, New York (Kevin J. Philbin of counsel), for appellant.

Gersowitz Libo & Korek, P.C., New York (Daniel B. Linson of counsel), for respondent.

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered November 8, 2017, which granted plaintiff's motion for spoliation sanctions to the extent of precluding defendant Edwin G. Vroom from "testifying at trial or offering evidence in an affidavit in substantive motion practice," unanimously reversed, on the law, without costs, and the motion denied.

As defendant was not on notice that the Electronic Data Recorder (EDR) in his car would be needed for future litigation, his failure to preserve the car or EDR did not constitute negligent spoliation of evidence (cf. Strong v City of New York,

112 AD3d 15, 21 [1st Dept 2013]). Moreover, plaintiff did not promptly request either the EDR or an opportunity to inspect the car.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 19, 2018

CLERK