OrthoTec, LLC v. HealthpointCapital, LLC

106 A.D.3d 472, 964 N.Y.S.2d 421

Opinion

Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered October 2, 2012, which denied defend ants’ motion for spoliation sanctions, unanimously affirmed, without costs.

The motion court properly denied defendants’ motion to strike the cause of action for intentional interference with economic advantage as a sanction for spoliation since the spoliation did not deprive defendants of their ability to defend against the claim (see Suazo v Linden Plaza Assoc., L.P., 102 AD3d 570 [1st Dept 2013]; see also Melcher v Apollo Med. Fund Mgt. L.L.C., 105 AD3d 15 [1st Dept 2013]). With respect to any other spoliation sanction, the court properly found that the “zone of the preservation duty” encompasses only documents drafted subsequent to 2008, when plaintiff began seriously contemplating initiating this litigation (see VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33 [1st Dept 2012]), and that the evidence of plaintiffs preservation and collection of any such documents is inadequate to show the degree of its culpability (see Melcher, 105 AD3d at 24). Concur—Andrias, J.E, Saxe, Freedman and Román, JJ.