Appellate Division Affirms Expert Preclusion And Adds $5,000 Sanction

The Appellate Division, Second Department, has affirmed a trial court's order precluding plaintiff's expert from testifying about his examination of a motorcycle on which plaintiff was riding when he was injured. The court ordered preclusion because after the expert's inspection, the vehicle was cannibalized at the garage where plaintiff had stored it. The court noted that the sanction to be imposed for spoliation, whether intentional or negligent, was within the discretion of the trial court and that the sanction imposed should be tailored to ameliorate the prejudice caused by the loss of the object. Given the facts of this case, the appropriate sanction was the one imposed by the trial court, namely precluding the expert from testifying as to his inspection of the motorcycle and that "by precluding the plaintiff from offering evidence based on his expert's inspection...the prejudice to the defendants, namely their inability to defend against the manufacturing defect claim, is greatly mitigated." The Appellate Division then, on its own, added a $5,000 sanction, payable by plaintiff to defendants. The Appellate Division imposed the monetary award because plaintiff was aware for 10 months that the motorcycle had been cannibalized before advising defendants and the court. The Appellate Division explained that the delay in advising defendants and the court of the loss of the motorcycle resulted in additional unnecessary motion practice that could have been avoided. This appeal was written and argued by Harry Steinberg and Steven B. Prystowsky, of the firm's Appeals Unit. (The underlying papers were drafted by Curt Schiner).

Dean v. Unsine Campagna, ___ A.D.3d ___, ___ N.Y.S.2d ___ (2nd Dep't 2007).