The plaintiff, Executive Insurance Company, as assignee of Tiffany Hughes, commenced this subrogation action to recover the total sum of $6,378.20 allegedly paid by the plaintiff for damages to a motor vehicle allegedly owned by the assignor, following a motor vehicle accident of October 25, 2004.

The action was commenced on June 27, 2005; and, issue was joined by service of the defendant's answer on or about September 30, 2005. On March 10, 2006, during a deposition of the plaintiff's alleged insured, Tiffany Hughes, Ms. Hughes testified that she was in possession of her purchase agreement or purchase finance agreement, as well as a copy of the title for the allegedly damaged vehicle, evidencing her ownership and insurable interest therein. At this deposition counsel for the defendant requested production of these documents. When these documents were not forthcoming, on April 14, 2006, the defendant served a formal Demand for Discovery and Inspection upon the plaintiff seeking, inter alia, these same documents. When, by July 5, 2006, the plaintiff still had not responded to the defendant's demands, in an effort to avoid needless motion practice, the defendant wrote to the plaintiff' s counsel seeking compliance with the defendant's demands.

After waiting almost seven (7) more months for any response from the plaintiff, to no avail, on January 31, 2007 the defendant served upon plaintiff a demand pursuant to CPLR § 3216(b). In response thereto, on February 22, 2007 the plaintiff served a Notice of Trial. On March 5, 2007 the defendant filed a jury demand; and, on April 5, 2007 moved to vacate the plaintiff's Notice of Trial due to the plaintiff's failure to provide the previously requested, but outstanding discovery. That motion resulted in the parties' stipulation dated April 11, 2007 providing that the plaintiff's Notice of Trial would be vacated and that the plaintiff would provide [*2]responses to all outstanding discovery within sixty (60) days.

Once again, the requested discovery was not forthcoming; and, on August 7, 2007 the defendant again wrote to counsel for the plaintiff, seeking compliance. When this correspondence went ignored for another six (6) months the defendant brought on this motion seeking an order striking the plaintiff's Complaint, pursuant to CPLR §3126 and compelling production of the outstanding documents, pursuant to CPLR §3124.

In opposition, the plaintiff fails to deny any of the defendant's allegations regarding the delay, the defendant's efforts to obtain compliance and the plaintiff's utter disregard for these efforts and the parties' stipulation. The plaintiff merely alleges that it served a response to the defendant's Notice for Discovery & Inspection, on April 11, 2008. The court notes that this "response" was served more than two (2) years after the defendant's demand therefor, one (1) year after the plaintiff stipulated to provide same within sixty (60) days and only after the defendant brought on this motion.

In reply, the defendant argues that the plaintiff's responses, which in pertinent part state, "Plaintiff [sic] subrogor is no longer in possession of the purchase agreement for the 2004 Toyota" and "Plaintiff [sic] subrogor is no longer in possession of the title for the 2004 Toyota" were incomplete and disingenuous. Defendant further alleges that these two (2) documents "go to the heart of the subject matter and are material to the litigation." (Callinan Affirmation 4/23/08, ¶ 8).

That branch of the defendant's motion which seeks an order, pursuant to CPLR § 3124 is denied. Given the fact that the plaintiff has represented that it is no longer in possession of the two (2) documents in question, the plaintiff cannot produce that which it does not have. The court would expect that these documents will not mysteriously surface at the time of trial.

"The drastic remedy' of striking an answer pursuant to CPLR 3126 is warranted when there is a clear showing' that the failure to comply with discovery demands was willful and contumacious ( Fellin v. Sahgal, 268 AD2d 456, 456, 702 NYS2d 338)." Denoyelles v. Gallagher, 40 AD3d 1027, 834 NYS2d 868 (2nd Dept. 2007) Similarly, "when 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 (citations omitted)." Baglio v. St. John's Queens Hospital, 303 AD2d 341, 755 NYS2d 427 (2nd Dept. 2003); See also: Olexa v. Jacobs, 36 AD3d 776, 829 NYS2d 564 N.Y.A.D. (2nd Dept. 2007) In the latter instance, "[w]here ... a party destroys key physical evidence such that its opponents are prejudicially bereft of appropriate means to confront a claim with incisive evidence' , the spoliator may be punished by the striking of its pleading (DiDomenico v. C & S Aeromatik Supplies, 252 AD2d 41, 53, 682 NYS2d 452, quoting Kirkland v. New York City Hous. Auth., 236 AD2d 170, 174, 666 NYS2d 609)." New York Central Mutual Fire Insurance Company v. Turnerson's Electric, Inc., 280 AD2d 652, 721 NYS2d 92 (2nd Dept. 2001); See also: Lamb v. Maloney, 46 AD3d 857, 850 NYS2d 138 (2nd Dept. 2007); Deveau v. CF Galleria at White Plains, LP, 18 AD3d 695, 796 NYS2d 119 (2nd Dept. 2005)

Given the testimony of the plaintiff's subrogor, along with the plaintiff's belated discovery response, it is apparent that the plaintiff and/or its subrogor, in whose shoes the plaintiff stands, Kaf-Kaf, Inc. v. Rodless Decorations, Inc., 90 NY2d 654, 665 NYS2d 47 (1997), Utica Mutual [*3]Insurance Company v. Brooklyn Navy Yard Development Corp., __ Misc 3d __, __ NYS2d __, (2nd Dept. 2008) was once in possession of the documents which the defendant seeks. It is equally apparent that over the course of the two (2) years it took the plaintiff to respond to the defendant's proper demands, these documents were either intentionally destroyed or negligently lost, preventing their production by the plaintiff.

The above notwithstanding, the defendant has failed to demonstrate the plaintiff's recalcitrant conduct was willful or contumacious. It is clear, however, that the plaintiff's conduct was the result of its cavalier disregard for its discovery obligations and the parties' discovery stipulation. The defendant has also "failed to sustain [his] burden of demonstrating that [he] would be severely prejudiced by reason of the missing evidence in presentation of [his] defense to the plaintiff's claim." Kirschen v. Marino, 16 AD3d 555, 792 NYS2d 171 (2nd Dept. 2005); See also: Miller Realty Associates v. Amendola, 51 AD3d 987, 859 NYS2d 258 (2nd Dept. 2008) Despite the plaintiff's failure to produce the purchase or finance agreement and a copy of the title for the allegedly damaged vehicle in response the defendant's demands, the defendant may still obtain copies of these documents, if truly necessary, by the service of a subpoena duces tecum upon the New York State Department of Motor Vehicles and upon Westbury Toyota, which was identified as the dealer from whom the plaintiff's subrogor purchased the vehicle in question. Where, as here, "a party's negligent loss or destruction of evidence does not deprive its opponent of a means to present or defend against a claim, striking a spoliator's pleading is not warranted (citations omitted.)." Dean v. Campagna, 44 AD3d 603, 845 NYS2d 62 (2nd Dept. 2007) In such circumstances a less severe sanction may be appropriate. Gerber v. Rosenfeld, 18 AD3d 812, 795 NYS2d 463 (2nd Dept. 2005); Klein v. Ford Motor Company, 303 AD2d 376, 756 NYS2d 271 (2nd Dept. 2003)

"[B]ecause the [defendant] endured lengthy delays and was repeatedly forced to seek judicial intervention to secure the discovery of the items to which [he] was entitled, the imposition of a monetary sanction is appropriate (citations omitted)." Smith v. New York Telephone Company, Inc., 235 AD2d 529, 653 NYS2d 30 (2nd Dept.1997) Under all of the facts and circumstances presented herein the court finds the imposition of a monetary sanction in the sum of $1,000.00 to be appropriate. See: Dean v. Campagna, supra . [$5,000.00 sanction]; Garan v. Don & Walt Sutton Builders, Inc., 27 AD3d 521, 813 NYS2d 123 (2nd Dept. 2006) [$1,500.00 sanction]; O'Neill v. Ho, 28 AD3d 626, 814 NYS2d 202 (2nd Dept. 2006) [$1,500.00 sanction]

Accordingly, the defendant's motion is granted to the extent of hereby ordering that the plaintiff pay to the defendant the sum of $1,000.00 within thirty (30) days of the service of a copy of this order with notice of entry.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

July 29, 2008

___________________________ [*4]

ANDREW M. ENGEL

J.D.C.