Allstate Insurance v. Kearns

309 A.D.2d 776, 765 N.Y.S.2d 806

Opinion

In a subrogation action to recover the proceeds of a fire insurance policy, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Parga, J.), entered July 24, 2002, as denied that branch of its cross motion which was to strike the answer of the defendants Robert Kearns and Jane Kearns pursuant to CPLR 3126 based upon spoliation of evidence.

Ordered that the order is affirmed insofar as appealed from, with costs.

The determination of the appropriate sanction for spoliation of evidence is within the broad discretion of the Supreme Court (see Horace Mann Ins. Co. v E.T. Appliances, 290 AD2d 418, 419 [2002]). Under the particular circumstances of this case, the Supreme Court’s determination to impose only the sanction of a negative inference charge, rather than the harsher sanction of striking the respondents’ answer, was a provident exercise of its discretion. Santucci, J.P., S. Miller, McGinity and Schmidt, JJ., concur.