Holliday v. "John Jones"

Appellate Division of the Supreme Court of New York

Holliday v. "John Jones"

297 A.D.2d 471, 746 N.Y.2d 901, 746 N.Y.S.2d 901, 2002 N.Y. App. Div. LEXIS 8198

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 5, 2002

StatusPublished

Cited by5 cases

This text of 297 A.D.2d 471 (Holliday v. "John Jones") is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Holliday v. "John Jones", 297 A.D.2d 471, 746 N.Y.2d 901, 746 N.Y.S.2d 901, 2002 N.Y. App. Div. LEXIS 8198 (N.Y. Ct. App. 2002).

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Opinion

The motion court properly exercised its discretion in declining to impose the harsh sanctions reserved for spoliation of evidence (see, Smith v New York City Health & Hosps. Corp., 284 AD2d 121, Iv denied 97 NY2d 607), since the required element of an unfairly gained advantage (see, Tawedros v St. Vincent’s Hosp., 281 AD2d 184) was not sufficiently demonstrated. While the discovery noncompliance by defendant City cannot be found to have been of such nature that the City’s answer should be stricken or that a comparably harsh sanction pursuant to CPLR 3126 should be imposed at this time (see, Catarine v Beth Israel Med. Ctr., 290 AD2d 213), we nevertheless find that the imposition of a $2,500 penalty is warranted in view of [472]*472the lengthy and continuing untenable delay. Further delay, other than a brief, reasonable period after service of a copy of this order with notice of entry upon defendant City, in producing either any remaining items and witnesses directed by the court in the October 12, 2000 and the November 1, 2001 orders, or in providing a cogent sworn affidavit explanation for a failure to produce, would result in a compelling argument for plaintiffs obtaining enforcement of the motion court’s conditional order of preclusion. Concur — Williams, P.J., Buckley, Ellerin and Rubin, JJ.

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The motion court properly exercised its discretion in declining to impose the harsh sanctions reserved for spoliation of evidence (see, Smith v New York City Health & Hosps. Corp., 284 AD2d 121, Iv denied 97 NY2d 607), since the required element of an unfairly gained advantage (see, Tawedros v St. Vincent’s Hosp., 281 AD2d 184) was not sufficiently demonstrated. While the discovery noncompliance by defendant City cannot be found to have been of such nature that the City’s answer should be stricken or that a comparably harsh sanction pursuant to CPLR 3126 should be imposed at this time (see, Catarine v Beth Israel Med. Ctr., 290 AD2d 213), we nevertheless find that the imposition of a $2,500 penalty is warranted in view of [472]*472the lengthy and continuing untenable delay. Further delay, other than a brief, reasonable period after service of a copy of this order with notice of entry upon defendant City, in producing either any remaining items and witnesses directed by the court in the October 12, 2000 and the November 1, 2001 orders, or in providing a cogent sworn affidavit explanation for a failure to produce, would result in a compelling argument for plaintiffs obtaining enforcement of the motion court’s conditional order of preclusion. Concur — Williams, P.J., Buckley, Ellerin and Rubin, JJ.

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Bluebook (online)

297 A.D.2d 471, 746 N.Y.2d 901, 746 N.Y.S.2d 901, 2002 N.Y. App. Div. LEXIS 8198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holliday-v-john-jones-nyappdiv-2002.

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