In Malouf v. Equinox Holdings, Inc., the Appellate Division, First Department affirmed the lower court’s granting of (1) plaintiff’s motion “for spoliation sanctions to the extent of precluding defendant from arguing at trial that the treadmill plaintiff was using at the time of her accident was operating properly or was free from defects”, and (2) third-party defendant Life Fitness, Inc.’s motion to strike the third-party complaint against it.
In this case, plaintiff alleged that she sustained injuries when she fell off a treadmill at defendant’s SoHo location.
defendant was unable to provide the treadmill for inspection or to provide any information as to how or when the treadmill was removed, other than an affidavit from a manager at the Soho location who believed that it was replaced as part of an equipment upgrade that would have occurred some time prior to September 2010. All paperwork concerning the treadmill was also missing.
The court held that, under the circumstances of this case, spoliation sanctions were warranted:
Plaintiff and third-party defendant established that defendant’s failure to take affirmative steps to preserve the treadmill constituted spoliation of evidence by demonstrating that defendant was on notice that the treadmill might be needed for future litigation. Although the instant action was not commenced until May 20, 2009, the evidence shows that plaintiff immediately reported the accident and a claims defense form was prepared by defendant’s employee and forwarded to its legal department. Accordingly, the motion court did not abuse its broad discretion in remedying defendant’s discovery failures by barring it from arguing at trial that the subject treadmill was operating properly or was free from defects.
The court also held that the motion court properly invoked “the harsh penalty of striking defendant’s third-party complaint seeking contribution and indemnification based on the design, manufacture, sale, maintenance, and servicing of the treadmill was warranted since the treadmill was a key piece of evidence that is not available for inspection.”