On May 7, 1998, plaintiff Melinda Moguel allegedly sustained personal injuries when she was pushed on a stairway located at Sarah J. Hale High School in Brooklyn. Plaintiffs served notices of claim upon defendants the City of New York and the Board of Education of the City of New York (collectively "the City") on June 17, 1998 and June 18, 1998 alleging, among other things, "negligence- inadequate and/or lack of supervision, security and safety measures." Plaintiffs filed a Summons and Verified Complaint on May 26, 1999. Thereafter, Defendants interposed an Answer. On December 16, 2003, a Preliminary Conference was held. In December 2006, Defendants served a Response to Preliminary Conference Order that included an affidavit to the effect that Defendants did not have any records regarding the subject incident.

Initially, Plaintiffs seek to renew their prior motion that sought, among other things, an order issuing spoliation sanctions against the City for allegedly destroying documents, and compelling the City to produce additional witnesses for a deposition. This Court's order, dated January 24, 2007, granted Plaintiffs' motion only to the extent that it ordered the City to produce two witnesses for deposition, and provided that Plaintiffs "may renew this motion after the above is completed." Since the two depositions have been held, that portion of Plaintiffs' motion seeking renewal of its prior motion is granted.

In support of their motion seeking spoliation sanctions, Plaintiffs submit the deposition transcript of injured plaintiff Melinda Moguel. She testified that, as she was walking down the stairs on her way to class, a student she could not identify pushed her. She testified that there had [*2]been a fight in the third-floor lunch room, and that she was pushed when people ran down the stairs to avoid the fight. Plaintiff reported the incident to her teacher, Mr. Holder, who gave her a pass to go to the school nurse. Because the school nurse's office was too crowded due to the fight, Plaintiff was told to see her guidance counselor, Mr. McHale, who, in turn, referred her to the principal's office. Plaintiff called her mother, and an ambulance eventually transported her to Long Island College Hospital.

Plaintiff did not recall ever filling out an accident report. Although police were called to the school because of the fight, Plaintiff never spoke to any officers about the subject incident. Plaintiff testified that she did not speak to any school employee about the incident at any time after the incident. However, she testified that she submitted a safety transfer request to her guidance counselor, Mr. McHale, in which she explained her reason for requesting a transfer as being that she was "pushed down a flight of stairs."

Plaintiffs also submit the deposition transcript of John Reedy, the Assistant Principal of Organization at Brooklyn High School of the Arts. Mr. Reedy testified that, from 1999 through June 2001, he was the Assistant Principal of Organization of the injured Plaintiff's school, Sarah J. Hale High School. Notably, Mr. Reedy did not work at Sarah J. Hale High School at the time of Plaintiff's accident or at any time prior to 1999. He testified that Sarah J. Hale High School was phased out in June 2001, and that all of its records were destroyed in 2001, except for academic records including transcripts, report cards, health records, and immunizations. He testified that incident reports and disciplinary reports were destroyed.

Plaintiffs also submit the deposition transcripts of Plaintiff's teacher, Winthrop Holder, and her guidance counselor, Robert McHale. Mr. Holder did not recall Plaintiff or the subject incident; he did not recall if he had ever filled out any incident reports when he taught at Sarah J. Hale High School. Mr. McHale testified that he did not recall ever making a request for a safety transfer on behalf of Plaintiff.

In their motion, Plaintiffs contend, among other things, that the City's destruction of Sarah J. Hale High School's documents, which may have included documents relating to the subject incident, constitutes spoliation of evidence that warrants the striking of Defendants' pleadings. (See Kirkland v New York City Hous. Auth., 236 AD2d 170 [1st Dept 1997].)

In order to reasonably contend that documents relating to the subject incident were destroyed, Plaintiffs must first demonstrate that such documents existed. In cases where a party seeks an adverse inference charge against an opponent who has failed to produce a document, it has been held that the proponent "must make a prima facie showing that the document in question actually exists, that it is under the opponent's control, and that there is no reasonable explanation for failing to produce it." (Jean-Pierre v Touro College, 40 AD3d 819, 819 [2d Dept 2007]; Wilkie v New York City Health & Hospitals Corporation, 274 AD2d 474, 474 [2d Dept 2000]; Cidieufort v New York City Health & Hospital Corporation, 250 AD2d 720, 721 [2d Dept 1998].) Since Plaintiffs, here, seek the drastic sanction of striking Defendants' pleadings, as [*3]opposed to an adverse inference, they must show, at the very least, that such documents existed. Such a showing is required, at least by implication, by decisions authorizing sanctions for destruction of evidence. (See Shea v Spellman, 4 Misc 3d 1008[A], 2004 Slip Op 50785[U], *2 [Sup Ct, Bronx County 2004] ["It is axiomatic that control of the spoiled evidence prior to its destruction is a prerequisite to any claim alleging that a party destroyed evidence."].)

Except for a safety transfer application that was completed by the injured Plaintiff a period of time after the incident, Plaintiffs fail to submit any evidence demonstrating that documentation, such as an accident report or investigation report relating to the subject incident, was ever generated. The injured Plaintiff testified that she did not fill out an incident report. She did not know the identity of the person or persons who pushed her, or the names of any witnesses to her fall. She testified that she did not visit the nurse because the nurse's office was too crowded. Neither Mr. Holder nor Mr. McMahon recalled Plaintiff or the subject incident. Mr. Holder could not recall ever filling out an accident report while he was a teacher at Sarah J. Hale High School.

To the extent that Plaintiffs claim that documents related to this case were destroyed, the only record that they demonstrate may have ever existed was the injured Plaintiff's safety transfer application. Assuming that such document existed and was destroyed by Defendants in 2001 (which was after Defendants were put on notice of the litigation), Plaintiffs must still make a showing that would entitle them to the drastic sanction of striking Defendants' pleadings.

"[W]here a party destroys key evidence such that its opponents are deprived of appropriate means to confront a claim with incisive evidence, the spoliator may be punished by the striking of its pleading." (See De Los Santos v Polanco, 21 AD3d 397, 398 [2d Dept 2005].)

Here, it does not appear that the safety transfer application would constitute "key evidence" that would deprive Plaintiffs of the means to prosecute their claims with "incisive evidence." According to the injured Plaintiff's own testimony, she wrote in the safety transfer application form that she was "pushed down a flight of stairs." Based upon Mr. McHale's testimony, the safety transfer application consisted of "the incident that happened if the parent was not there, NYPD got the docket, of course, the name and address and submit it to the AP guidance . . ." It is unclear on this record as to what other information would be included in the transfer application.

In opposition to Plaintiffs' motion, Defendants fail to submit any evidence as to what information is contained within the safety transfer application form. Nor do Defendants submit any evidence demonstrating their efforts, if any, to obtain and preserve such record prior to its destruction in 2001.

Even though Plaintiffs have not established that Defendants' pleadings should be stricken, they have sufficiently established that an adverse inference charge against Defendants should be given at trial at Plaintiffs' request, because of Defendants' failure to preserve the safety transfer application despite having been put on notice of the litigation. (See De Los Santos v Polanco, 21 [*4]AD3d at 399; Linarello v City University of New York, 6 AD3d 192, 194 [1st Dept 2004]; Hilfiger v Commonwealth Trucking, Inc., 300 AD2d 58, 60 [1st Dept 2002]; Metropolitan New York Coordinating Council on Jewish Poverty v FGP Bush Terminal, 1 AD3d 168, 168 [1st Dept 2003].) The jury might be charged that it is permitted to infer that the missing document contained evidence that would have supported Plaintiffs' version of the events of May 7, 1998.

Accordingly, Plaintiffs' motion, pursuant to CPLR 3126, seeking spoliation sanctions is granted to the extent that an adverse inference charge shall be given at trial at Plaintiffs' request. To the extent that Plaintiffs' Notice of Motion also seeks summary judgment, their motion is denied since Plaintiffs' papers do not address said relief, and otherwise fail to establish that the evidence attached to their moving papers demonstrates their prima facie entitlement to summary judgment on any of the causes of action asserted in their Complaint.

That branch of Plaintiffs' motion seeking to extend their time to file the note of issue is granted without opposition. Plaintiffs shall file their note of issue on or before September 21, 2007.

August 21, 2007

Jack M. Battaglia

Justice, Supreme Court