On October 17, 2004, the plaintiff allegedly sustained injuries when a motor vehicle operated by defendant Glen Bribitzer and owned by Mercedes Benz Credit Corporation collided with his motorcycle at the intersection of Annadale Road and Pine Terrace, Staten Island, New York. In August, 2004, the plaintiff commenced this action and issue was joined by service of an answer by the defendants. In his Bill of Particulars, the plaintiff set forth the following injuries: fractured skull and nose; lacerated cornea, complete tear of the PCL of the right knee; partial tear of the ACL of the right knee; and injuries to his cervical spine. After the completion of discovery, the defendants moved to dismiss the complaint pursuant to CPLR 3126 based on the plaintiff's loss of the motorcycle helmet and shield that he was wearing during the accident.

"[W]hen a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading" (Baglio v. St. John's Queens Hosp., 303 AD2d 341 [2d Dept. 2003]; DiDomenico v. C & S Aeromatik Supplies, 252 AD2d 41 [2d Dept. 1998]). Spoliation sanctions are not limited to cases where the evidence was destroyed willfully or in bad faith, "since a party's negligent loss of evidence can be just as fatal to [an]other's party's ability to present [a case or] a defense" (Madison Ave. Caviarteria v. Hartford Steam Boiler Inspection, 2 AD3d 793 [2d Dept. 2003]; DiDomenico v. C & S Aeromatik Supplies, 252 AD2d 41 [2d Dept. 1998]). Although courts are reluctant to dismiss a pleading absent willful or contumacious conduct, it may be warranted as a "matter of elementary fairness" (Lawson v. Aspen Ford, Inc., 15 AD3d 628 [2d Dept. 2005]; Favish v. Tepler, 294 AD2d 396 [2d Dept. 2002]). The determination of spoliation sanctions is within the broad discretion of the court (see, [*2]Barahona v. Trustees of Columbia Univ. in City of NY, 16 AD2d 445 [2d Dept. 2005]; Horace Mann Ins. Co. v. E.T. Appliances, 290 AD2d 418 [2d Dept. 2002]).

In opposition to the motion, the plaintiff argues that it is not appropriate to dismiss the complaint as the disposal of the helmet and shield was not willful or contumacious. However, the plaintiff admits that its inspection may serve to mitigate damages had it been defective or negligently manufactured. Nevertheless, the plaintiff contends that the motion should be denied in its entirety.

Contrary to the plaintiff's contention, the instant case is not analogous to those cases he cites where the court held that no sanction was appropriate for the loss of evidence prior to inspection (see, Deveau v. CF Galeria at White Plains, 18 AD3d 695 [2005]; Barahona v. Trustees of Columbia Univ. In City of NY, 16 AD3d 445 ]2d Dept. 2005]). In those cases, the Second Department specifically found that the loss of the evidence was not prejudicial (see, Iannucci v. Rose, 8 AD3d 437 [2d Dept. 2004]; Madison Avenue Caviarteria v. Hartford Steam Boiler Inspection & Ins. Co., 2 AD3d 793 [2d Dept. 2003]; see, also, Kirschen v. Marino, 16 AD3d 555 [2d Dept. 2005][The gravamen of the burden on a motion pursuant to CPLR 3216 is a showing of prejudice]).

Here, the plaintiff admits that inspection of the helmet and shield may assist in mitigating damages regarding plaintiff's head injuries. The court finds that it would be unfair not to impose some sanction due to the destruction, albeit negligent, of this evidence. However, in the absence of evidence that the destruction was willful or that the lost item is the "key" evidence in the case, the drastic remedy of dismissal of the complaint is unwarranted (see, De Los Santos v. Polanco, 21 AD3d 397 [2d Dept. 2005]; Marro v. St. Vincent's Hosp. , 294 AD2d 341 [2d Dept. 2002]). Thus, the court finds that the plaintiff shall be precluded from offering any evidence regarding any head injuries (i.e, fractured skull and nose and lacerated cornea) allegedly sustained as the result of the accident at the time of trial.

Accordingly, it is

ORDERED, that the defendants' motion pursuant to CPLR 3216 is granted only to the extent that the plaintiff is precluded from offering evidence with respect to any head injuries allegedly sustained as a result of the accident at the time of trial.

E N T E R,

Dated: January 8, 2007

J.S.C.