Erich Keller and Renate Keller, his wife                            Dated: March 24, 2000

                                                    Plaintiff,                             Index Number..............18150/93
                 -against-

American Golf Corporation, The City of New                     Motion Date................12/21/99
York and Vincent McCabe,

                                                     Defendant.                         Motion Cal. Number..13

This is a motion by the plaintiffs to strike the answer of the defendants American Golf Corporation and The City of New York. For the reasons that follow, the motion is denied.

This action concerns an accident at a driving range which was owned by the defendant City and managed by the defendant American Golf. It is alleged that the plaintiff was bending down to position his ball when struck by a fellow-golfer's club. The claim against the City and American Golf is that at some time prior to the accident barriers between the golfers= stations had been in place, which would have prevented the fellow-golfer's club from striking the plaintiff, but that they had been removed during a renovation and expansion of the driving range. At issue on this motion are certain records relating to the renovation, which the plaintiff contends would support its theory.

These documents were first demanded in 1995, by demand made to American Golf's prior counsel. A representative of American Golf has submitted affidavits, in which she states that American Golf was not made aware of these demands until 1997. By that time, she states, American Golf had ceased managing the property for several years (apparently, as of some time in 1994), and had not retained any such records, and that there was no way to ascertain if they had even existed. She states that pursuant to American Golf's usual business practices, any such records would have been destroyed before it was made aware of the request in 1997. She makes no statement as to whether the records would still have been in existence in 1995, when the demand was first made.

It is well established that the spoliation of relevant evidence can result in the imposition of appropriate sanctions pursuant to CPLR 3126, even when such spoliation is done negligently and not in bad faith, since a party's negligent loss of evidence can be just as fatal to the other party's ability to present its case (Kirkland v. New York City Housing Authority, 236 A.D.2d 170; Squitieri v. City of New York, 248 A.D.2d 201; Popfinger v. Terminix Intl. Co. Ltd. Partnership, 251 A.D.2d 564). Where, however, the failure to preserve the destroyed evidence was not intentional, and the responsible party did not obtain any unfair advantage from the failure to preserve it as evidence, it is proper to deny the motion for summary judgment based on the spoliation of that evidence, and to decline to impose any sanction (see, Gallo v. Bay Ridge Lincoln Mercury, Inc., ___ AD2d ___; Popfinger v. Terminix Intl. Co. Ltd. Partnership, supra; Prasad v. B.K. Chevrolet, 184 A.D.2d 626). Here, the essential issue to be determined is whether the driving range, as it existed at the time of the accident, was in reasonably safe condition. The records at issue here are irrelevant to this point. The availability of alternate designs may also be an issue, but neither party requires proof of the condition of this particular driving range at an earlier time in order to prove its case on this issue. That the defendants= motivation in taking down the barriers may have been to improve profitability is a peripheral issue at best, and the destruction of evidence on this point does not warrant any sanction.

A short-form order embodying this decision has been entered herewith.

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                                                                                                                                       J.S.C.